Opinion
13-P-1955
12-03-2014
ADOPTION OF GLENN (and a companion case).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother and father appeal from a Juvenile Court judge's decrees terminating their parental rights to their sons, Glenn and Peter, pursuant to G. L. c. 119, § 26, and in accordance with G. L. c. 210, § 3. We affirm.
The trial judge made 153 findings of fact based on the forty-eight exhibits admitted during trial and the thirteen witnesses who testified over nine days between October, 2012, and January, 2013. We summarize these findings, which are not challenged by either parent.
The mother's two oldest children, April, born in December, 1996, and Steven, born in May, 2001, were removed from the mother's care due to poor living conditions, substance abuse, and domestic violence. They reside with their respective fathers. The father's three oldest children are not in his custody.
The mother's extensive history with the Department of Children and Families (DCF) began in 1999, and since then, nineteen abuse or neglect reports pursuant to G. L. c. 119, § 51A (51A reports), have been filed against her concerning all of her children except for Steven. Since the mother and father met in 2002, they have had a tumultuous, on-again-off-again relationship, rife with substance abuse and domestic violence. The mother's and father's parental rights to their first two children together, daughters born in February, 2003, and October, 2005, were previously terminated. See Adoption of Uma, 73 Mass. App. Ct. 1104 (2008).
On the record is a particularly disturbing account from 2004, where one night, the father punched the mother in the face and the back of the head; struck her after throwing a bottle full of rum at her face; held her hostage in a bathroom for several hours; smashed her face against a tile floor several times; choked her until she almost passed out, twice; and threatened to kill her and slice her face in front of their child.
Glenn was born in January, 2009. Within two months of his birth, five 51A reports were filed regarding the mother's inadequate care of Glenn, and DCF removed him from the mother's care from February 29, 2009, to May 8, 2009. During this time, the mother entered a detoxification program for her substance abuse problem. On June 29, 2009, Glenn was again removed from the mother's care for one month, after she left her treatment program overnight without permission. Around this time, the mother explained that she had ended her relationship with the father during her pregnancy with Glenn because the father had again become physically and mentally abusive toward her. However, the mother gave birth to Peter about a year later, in April, 2011. At the time of Peter's birth, both parents were living separately in, according to the police, known drug houses. The mother's landlord, whom she referred to as "papa" even though he is not a relative, supported her financially by paying her rent and bills. The father was living with a heroin abuser.
Four of these 51A reports were filed following an incident that occurred on February 22, 2009, while the mother resided at the Elm Court Hotel. The mother had left Glenn in a friend's care while she went out with others. She arrived home at 4:10 A.M. At 6:30 A.M., Glenn was heard crying in the mother's room for forty-five minutes. The mother did not respond to phone calls made to her room. When staff opened the door, the mother was found lying naked on her bed, intoxicated and unresponsive. Glenn needed a new diaper, but there were no clean diapers in the room. The mother and Glenn were taken to the hospital. Because the mother was intoxicated and combative, she was held in the secure psychiatric area of the hospital emergency room. A toxicology test taken at 9:30 A.M. indicated that the mother's blood alcohol level was .213, and she tested positive for opiates.
Around the time of Peter's birth, the mother renewed her relationship with her oldest son, Steven, whom she had not seen in over eight years. The mother was aware of Steven's significant behavioral issues, including an incident in which he brought a knife to school, leading to his hospitalization in June, 2011. The mother allowed Steven to visit her once a week. On June 18, 2011, Peter was brought to the emergency room because he had blood in his mouth. According to reports, Peter was riding in the back of the car with Steven, when Steven stated that he saw blood in Peter's mouth. On June 30, 2011, Steven went to the mother's home for an extended visit, and according to the mother, he was not left alone with Peter other than when the mother was in the bathroom, the shower, or doing laundry downstairs. Peter had a medical check-up on June 30, 2011, where he received immunization injections in his upper thighs. Over the next several days, the mother attributed swelling in Peter's left thigh to the injections. On July 3, 2011, the mother hosted a cookout, where the father noticed several bruises on Peter's wrist, and later, considerable swelling in Peter's leg, but the father took no further action. Steven was sent home that day for punching the mother and playing roughly with Glenn.
On July 5, 2011, the mother brought Peter to the doctor because of the swelling in his leg, and Peter was sent to the hospital, where an X-ray indicated that he was suffering from a transverse midshaft fracture of the left tibia and fibula. Two 51A reports were filed that day alleging physical abuse of Peter. A full skeletal survey performed on July 6, 2011, revealed that Peter had also suffered acute fractures of the radius and ulna in his left forearm. Two weeks later, additional X-rays confirmed the existence of fractures to Peter's right arm humerus and his right lower leg. Dr. Alice Newton, the medical director of the child protection team at Boston Children's Hospital, concluded that all of Peter's fractures had occurred within a couple of days of his admission to the hospital on July 5, 2011. After ruling out any genetic or medical issues, Dr. Newton determined that Peter's injuries were the result of "very, very concerning physical abuse," that the amount of force used to cause such injuries was greater than that of a caretaker reasonably handling an infant, and that these injuries were not commonly caused by clumsy parents or siblings handling a baby.
On the night of July 5, 2011, DCF attempted to locate Glenn to no avail. When DCF made contact with the father around 3 A.M. on July 6, 2011, he refused to let a social worker see Glenn, and he refused to schedule an appointment with the social worker later in the day. The father hung up on the social worker twice after that, and he eventually stopped answering his phone. After two further attempts, DCF managed to locate Glenn around 3:30 P.M. on July 6, 2011, and removed him from the parents' custody on an emergency basis. Upon examination, doctors found that Glenn had no fractures or suspicious injuries. Both parents vehemently deny that they caused Peter's injuries, and neither believes that the other is responsible for them. The mother and father both suspect that Steven caused Peter's injuries during one of Steven's overnight stays with the mother.
Peter was discharged from the hospital on July 8, 2011, and placed with his current foster family, where he has been doing "extremely well." Glenn was placed with his current foster family, where he is also thriving.
On August 11, 2011, the mother was arraigned in District Court on two counts of causing permanent injury to a child based on the injuries suffered by Peter. The father posted her bail and reported at that time that they lived together at the mother's house. Subsequently, the father sent the mother "awful" text messages and threatened to have her bail revoked. The father followed through with his threat on November 10, 2011, successfully pursuing a revocation of the mother's bail after she broke a window at the father's home because she was upset with him for having been with another woman. The father reported that the mother had been drinking since Glenn and Peter were removed. The mother denied breaking the window and claimed that the father had been intoxicated at the time and that she had smelled marijuana at his home. The mother also claimed that the father made up the incident because he was jealous that she was involved with someone else. The mother was incarcerated from November, 2011, until February, 2012, while awaiting trial on the charges related to Peter's injuries.
The mother and father both argue in separate briefs that the trial judge's subsidiary findings were not sufficient to support the ultimate conclusion that they are currently unfit to care for Glenn and Peter. "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.'" (Footnotes omitted.) Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997), quoting from Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). The decision to terminate parental rights must be supported by subsidiary findings which, taken together, constitute clear and convincing evidence of parental unfitness. See Adoption of Quentin, 424 Mass. 882, 886 (1997). On appeal, "[w]e will not disturb the judge's findings absent a showing that they are clearly erroneous." Adoption of Peggy, 436 Mass. 690, 701 (2002). "Generally, no one factor is determinative and the judge should weigh all the evidence" (footnote omitted). Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 (1987). As noted, neither the mother nor the father contests any of the trial judge's subsidiary findings. According to the judge's conclusions of law, the ultimate findings of unfitness were based on the evidence in the aggregate, with no one factor given conclusive weight. We conclude that the subsidiary findings support the judge's findings that both the mother and the father are currently unfit and that such unfitness is "likely to continue into the indefinite future to a near certitude."
Citing Adoption of Zoltan, 71 Mass. App. Ct. 185, 188 (2008), the mother argues that the facts here were not "full, clear, and decisive" in demonstrating parental unfitness. However, the case at hand is distinguishable. The judge here found that Peter's serious injuries, inflicted while in the mother's care, represented a pattern of the mother's inability to care for her children. Contrast id. at 189 (mother's inability to explain her child's serious injury, without more, did not establish parental unfitness). The judge is permitted to look at a pattern of parental neglect or misconduct in determining the future fitness of a parent and the likelihood of harm to a child. Adoption of Elena, 446 Mass. 24, 33 (2006). The uncontested subsidiary findings demonstrate that Peter's injuries were not an isolated incident. We conclude that the trial judge found full, clear, and decisive facts in making a determination of the mother's unfitness.
In Zoltan, supra, the mother did not witness the injury the child sustained; there was no evidence that the mother had a history of neglect or abuse; and there was no finding that the child's injuries were caused by abuse or neglect. 71 Mass. App Ct. at 189-190.
The father argues that the judge's decrees terminating his parental rights were based on erroneous legal conclusions. We disagree. The judge's "findings, inferences, and rationale are . . . to be clearly set forth and are to explain the conclusions reached." Adoption of Stuart, 39 Mass. App. Ct. 380, 382 (1995) (citation omitted). Here, the record clearly supports the judge's findings. Although the father argues that the judge failed to assess each parent's fitness separately, we conclude that she did assess them separately and that there was sufficient evidence to support the findings that the father is unfit to parent Glenn and Peter. That Peter was in the mother's care when he was injured does not exculpate the father. The father's demonstrated inability to care for his children and protect them from harm is enough to find him unfit. See Adoption of Lorna, 46 Mass. App. Ct. 134, 141 (1999) (parents unfit because of their inability to recognize and prevent abuse).
Based on the subsidiary findings in the aggregate, we conclude that the judge had sufficient bases for her findings that the mother and the father are currently unfit to parent Glenn and Peter, and that termination of their parental rights is in the children's best interests.
Decrees affirmed.
By the Court (Kantrowitz, Graham & Katzmann, JJ.),
The panel is listed in order of seniority.
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Clerk Entered: December 3, 2014.