In November of 2016, the Department of Children and Families (department) filed a care and protection petition under G. L. c. 119, § 24, alleging that Anders was at risk of neglect by his mother.3 After a trial in July of 2017, the judge adjudicated Anders, then six years old, in need of care and protection, finding that the department had proved by clear and convincing evidence that the mother was currently unfit. Both the mother and Anders appeal. We reverse.
Background. The judge made the following findings.4 The mother, who was thirty-eight years old at the time of trial, has three children by different fathers. She graduated from high school, attended vocational school, and has maintained steady employment. When the mother was sixteen years old, she was involved in a serious car accident, causing her to sustain a brain injury. The maternal grandparents told the court investigator that, as a result of her brain injury, the mother "can't remember what happened and often behaves like she is stuck on age [sixteen]; hence, the bad decisions about who would father her children and her difficulty in setting boundaries and discipline for the boys."5
The department filed the underlying care and protection petition following a report that Anders was exhibiting serious behavioral issues and "had made sexualized comments resulting in a SAIN [Sexual Abuse Intervention Network] interview." Specifically, Anders had made the following comments regarding his uncle, the mother's brother: "I call my uncle big daddy" and "I get on all fours and he pisses up my a-hole." The mother admitted at trial that she told Anders and his brother not to mention their uncle's name during the SAIN interview; she acknowledged, however, that she should not have done so.6
The children were removed from the mother's care after the SAIN interview. Prior to their removal, Anders and his brother were always fighting and would sometimes become physical with each other. On one occasion a social worker observed them "throwing large boxes down the stairs, taking medication off the counter, and going in and out of the freezer." The social worker characterized the brother as the "main instigator." At that time Anders was attending therapy at the Brien Center on a weekly basis. The mother sought additional services for Anders after he was asked to leave a YMCA because of his alarming behavior.
After the children were removed, the mother cooperated with the department and complied with her service plan tasks, including working with a "parent-partner," visiting consistently with the children, and attending appointments with "ICC" and "Key Tracking."7 The judge found, however, that there was still "a concern ... with [the] [m]other's ability to follow through with the services." The judge cited the following examples: (1) the mother was asked to post a list of home rules, which she did, but once it blew off the wall, she failed to hang it back up; (2) during visits she would redirect Anders when he engaged in bad behaviors and name calling, but did not impose "any discipline such as time outs or strict enforcement of the rules"; (3) she does not understand the importance of Key Tracking "but continues to do it because that is what she was told to do"; (4) she failed to follow through with signing up Anders's brother for a daycare slot and instead used his father as a daycare resource; (5) she failed to make the necessary telephone calls to maintain Anders on a waiting list for behavioral therapy ; and (6) she was not forthcoming with the department about her new boy friend, who had a number of unsupported G. L. c. 119, § 51A, reports filed against him. The judge also found that Anders has "a terrible swearing problem," which he "learned from hearing [the] mother speak that way."
Discussion. The judge's findings do not suffice to show that the department met its burden of proving parental unfitness by clear and convincing evidence. "Parental unfitness ... means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's foster parent. Rather, the idea of 'parental unfitness' means 'grievous shortcomings or handicaps' that put the child's welfare 'much at hazard.' " Adoption of Greta, 431 Mass. 577, 587 (2000), quoting from Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997).
Here, the concerns regarding the mother's parenting abilities centered around her difficulties in managing Anders's behavioral issues. But those behavioral issues appeared to stem in large part from Anders's conflict with his brother, who was no longer living in the mother's home by the end of trial.8 Furthermore, it is undisputed that, once the children were removed, the mother visited them consistently and complied with her service plan. In fact, the mother gave uncontested testimony that she was found in "full" compliance with her service plan at the last foster care review meeting. The few missteps committed by the mother do not establish by clear and convincing evidence that she is unfit. In so concluding, we do not mean to minimize the significance of some of these missteps. In particular, the judge was justifiably concerned by the mother's failure to follow through with maintaining Anders on a waiting list for behavioral therapy and her failure to disclose that her new boy friend, who had a potentially concerning history, was spending nights at her home. But those concerns were ameliorated by evidence that Anders was still going to the Brien Center for therapy on a weekly basis, and that the mother disclosed her boy friend's information upon request and complied with an emergency plan prohibiting him from coming to the home. As for the remaining concerns cited by the judge, it suffices to say that they do not rise to the level of "grievous shortcomings or handicaps" that put Anders's welfare at risk. Adoption of Greta, 431 Mass. at 587.
As the department notes, because this is not a termination of parental rights case, the judge's findings would not preclude reunification of Anders with the mother in the future. But even in a care and protection proceeding, the burden of proof on the department to prove current unfitness is "heavy." Care & Protection of Elaine, 54 Mass. App. Ct. 266, 271 (2002). "The requisite proof must be strong and positive; it must be 'full, clear and decisive.' " Ibid., quoting from Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998). The evidence here is insufficient to meet that high standard.
Judgment reversed.