Opinion
15-P-535
12-29-2015
ADOPTION OF JOYCE (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The parents of Joyce and Peter appeal from decrees entered in the Juvenile Court terminating the mother's right to parent Peter and the father's right to parent both Peter and Joyce, and dispensing with their right to consent to adoption. On appeal, both parents contend that the judge's decision was not supported by clear and convincing evidence of current unfitness and that the judge erred by admitting certain out-of-court statements and expert testimony on the issue of the children's mental health. The mother also argues that many of the judge's findings are clearly erroneous and that the Department of Children and Families (DCF) violated the Americans with Disabilities Act (ADA) by allegedly failing to provide her with adequate services. In addition, the father claims that the judge impermissibly drew an adverse inference against him because he invoked his privilege under the Fifth Amendment to the United States Constitution and refused to answer questions related to allegations that he had sexually abused Joyce. We affirm.
The mother has surrendered her parental rights to Joyce and appeals only from the decree terminating her parental rights as to Peter.
Background. We summarize the judge's findings, all of which are amply supported by the record. The father and mother, who were never married, met through a mutual friend in 2003. They were living in Connecticut when Joyce was born in July, 2005. Peter was born about thirteen months later in August, 2006. The family subsequently moved to Massachusetts and were living in Pittsfield when, in 2009, Joyce and Peter were removed from the mother's care due to allegations of domestic violence between the mother and father. A care and protection case was filed by DCF but was ultimately dismissed and the children were returned to the mother.
In October, 2010, Joyce and Peter were again removed from the mother's care due to allegations that Joyce, who was five years old at the time, was sexually abused by a family friend, Steve. The abuse came to light when Steve posted sexually explicit photographs of Joyce on the Internet. Steve pleaded guilty to sexually abusing Joyce and received a sixteen-to-eighteen year sentence. Neither Joyce nor Peter have lived with the mother since October, 2010. In June, 2011, DCF placed the children with the father, despite the prior allegations of domestic violence. At that time, the father was living with his girl friend and her three children. The father's brother also resided in the home.
A pseudonym.
About a year later, in July, 2012, the father's brother was accused of sexually abusing the father's girl friend's youngest son. Within a few months, on October 15, 2012, DCF filed a new care and protection case due to allegations that the father was sexually abusing Joyce. Both Joyce and Peter were removed from the home and have not lived with the father since that time.
He subsequently pleaded guilty and is currently in prison.
At the time of trial, Joyce was living in a nurturing foster home. Joyce has significant emotional needs and suffers from posttraumatic stress disorder (PTSD). She resists limits; she lacks an understanding of personal boundaries; and she is sometimes hypervigilant, unfocused, and aggressive. Joyce demonstrates signs of trauma when she sees the father, including shaking and breaking out in hives. The judge found that contact with the father would be harmful to Joyce.
This is not a preadoptive placement.
Peter was placed in a preadoptive foster home where he was residing at the time of trial. Like Joyce, Peter suffers from PTSD. His symptoms have included bedwetting, nightmares, fear of darkness, lack of focus and attention, and avoidance. He has, however, developed a close bond with his foster father and foster siblings, and his symptoms have abated. Peter would like to continue living with his foster father.
Discussion. "In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Ibid. If a judge's conclusion rests on an improper factor, the decree must be vacated and the case remanded for reconsideration without use of that factor. Cf. Commonwealth v. Arroyo, 451 Mass. 1010, 1011-1012 (2008).
In determining parental unfitness, the judge may rely on a prior pattern of neglect, abuse, and misconduct, Adoption of Diane, 400 Mass. 196, 204 (1987); the refusal of parents to comply with service plans designed to strengthen the family unit, Care & Protection of Three Minors, 392 Mass. 704, 709-710, 713 & n.11 (1984); a parent's criminal record, Care & Protection of Frank, 409 Mass. 492, 494-495 (1991); mental health issues affecting the parent's ability to care for a child, Adoption of Quentin, 424 Mass. 882, 888 (1997); the specialized needs of a particular child, Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 799-800 (1983); the inability of parents to consistently provide stable and continuous care for the child, Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990); parental behavior adversely affecting the child, Adoption of Quentin, 424 Mass. at 887; a parent's inability to "recognize abuse and confront it preventively," Adoption of Lorna, 46 Mass. App. Ct. 134, 141 (1999); and exposure to domestic violence, Custody of Vaughn, 422 Mass. 590, 596 (1996).
1. Joyce's statements to social worker that father "did very bad things" to her. Social worker Aubrey Murdock testified at trial that, one day in January, 2014, she was driving Joyce to a DCF office and, while she was stopped at a red light, Joyce pointed to an apartment building and indicated that she used to live there. Joyce then said, "My Dad did very bad things to me." The father's objection to the testimony was overruled. The judge explained that the statement "is reflective of [Joyce]'s state of mind" and that the statement was admissible as a spontaneous utterance.
There was no error. First, the statement was properly admitted as evidence of Joyce's state of mind toward her father. "[S]tatements may be offered as evidence of state of mind without implicating the hearsay rule if the statements either do not contain assertions or are offered without regard to whether the assertions are true." Commonwealth v. Montanez, 439 Mass. 441, 447 (2003), quoting from Liacos, Brodin, & Avery, Massachusetts Evidence § 8.2.6 (7th ed. 1999). See Mass. G. Evid. § 803(3)(B) (2015).
The statement was also admissible substantively, as the judge ruled, as a spontaneous utterance. "A statement will be considered a spontaneous [or excited] utterance if (1) there is an occurrence or event sufficiently startling to render inoperative the normal reflective thought process of the observer, and (2) if the declarant's statement was a spontaneous reaction to the occurrence or event and the not the result of reflective thought." Commonwealth v. Beatrice, 460 Mass. 255, 258 (2011) (quotations omitted). See Mass. G. Evid. § 803(2). Here, the judge could reasonably conclude that seeing her former home, where "very bad things" happened, constituted a startling event and that Joyce's statement was "a spontaneous reaction to the . . . event and not the result of reflective thought." Commonwealth v. Mulgrave, 472 Mass. 170, 176 (2015), quoting from Commonwealth v. Irene, 462 Mass. 600, 606-607, cert. denied, 133 S. Ct. 487 (2012).
2. Peter's out-of-court statements. Peter's statements to his foster father and his therapist indicating that he wanted to live with his foster father and that he was scared when his mother dropped him off for an appointment with the therapist, leaving him alone, were properly admitted as evidence of Peter's state of mind, which the judge properly could consider in making her decision. See Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990) ("While statements of the children could not be relayed by others for their truth, those statements were admissible insofar as they reflected the mental state of the children at the time. State of mind of a child is often a material issue in care and protection proceedings" [citation omitted]). See also Adoption of Nancy, 443 Mass. 512, 518 (2005) ("A judge should consider the wishes of the children in making custodial determinations, and those wishes are entitled to weight in custody proceedings. . . . Their views, however, are neither decisive nor outcome determinative" [quotations omitted]).
3. Expert opinion testimony. There is no merit to the mother's argument that the judge erred by admitting testimony by Dr. David Tobin regarding Peter's trauma symptoms, specifically after having administered a Rorschach inkblot test. "The admission of expert testimony is 'largely within the discretion of the trial judge and will be reversed only where it constitutes an abuse of discretion or error of law.'" Adoption of Hugo, 428 Mass. 219, 232 (1998), quoting from Commonwealth v. Pikul, 400 Mass. 550, 553 (1987). The mother does not contest the qualifications of Dr. Tobin or even the general acceptance of the Rorschach test within the scientific community. Rather, she argues that the test is controversial when used to evaluate children and that Dr. Tobin acknowledged a discrepancy between Peter's behavior and the results of the test. Factors that may affect the reliability of scientific evidence, such as the accuracy of the Rorschach test in evaluating children, go to its weight and not its admissibility. Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 360 (2008) ("[A]ny failure to take account of additional factors affects the probativeness, rather than the admissibility, of [expert testimony]"). The judge acted within her discretion in crediting the testimony of Dr. Tobin.
4. The mother's challenges to findings of fact. The mother argues that several of the judge's findings of fact are clearly erroneous. She first challenges certain findings on the ground that they were based on information the judge had gleaned from her involvement in prior care and protection proceedings. See Care & Protection of Zita, 455 Mass. 272, 282 (2009). Assuming without deciding that the judge erred in relying on information she had learned from the prior proceedings, we are confident that the judge would have reached the same conclusions without relying on that information. Thus, this claim does not provide a basis for disturbing the judge's decision.
The mother also challenged several findings that were based on the judge's assessment of the credibility of certain witnesses, including the mother. This argument has no merit if only because the judge is entitled to make credibility determinations based on her view of the evidence. See Custody of Two Minors, 396 Mass. 610, 618 (1986) ("[T]he judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference").
In several of her findings, the judge chose not to credit the mother's testimony, and that of her therapist, while crediting conflicting evidence from the foster father, the court investigator, a social worker, and a doctor who determined the children suffer from PTSD.
Lastly, the mother challenges the judge's finding that she is not able to adequately address Peter's emotional needs based on an incident in which she left Peter alone at the office of his therapist. There was no error in the judge's determination that this incident is an example of the mother's failure to meet and anticipate Peter's emotional needs.
5. The father's Fifth Amendment privilege. The father testified at trial but refused to answer questions regarding Joyce's allegations that he sexually abused her. The judge drew an adverse inference from the father's invocation of the privilege. There was no error. See Custody of Two Minors, 396 Mass. at 617 ("[T]he privilege against self-incrimination applicable in criminal proceedings, which prevents the drawing of a negative inference from a defendant's failure to testify, is not applicable in a child custody case").
6. Current unfitness. Given Peter's special needs and the mother's failure to adequately improve her parenting skills, the judge did not err in finding the mother unfit to parent Peter. See Adoption of Ilona, 459 Mass. at 59-60. The father's failure to understand Peter's special needs and the regression Peter would likely face if he were taken from his foster home establish that the father is unfit to parent Peter as well and that it is in Peter's best interests for the rights of both parents to be terminated. Joyce's extreme fear of the father and the judge's conclusion that the father abused her demonstrate clearly and convincingly that the father is unfit to parent Joyce and that it is in her best interests for the father's parental rights to be terminated. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 591-592 (1981).
7. The mother's ADA claim. The mother has waived her challenge to DCF's provision of services under the ADA because she has raised the issue for the first time on appeal. See Adoption of Mary, 414 Mass. 705, 712 (1993) ("Generally, issues not raised by a losing party in the trial court are not addressed on appeal, absent exceptional circumstances"). The mother did not file a grievance or request a fair hearing from DCF, nor did she raise the issue at trial. See Adoption of Gregory, 434 Mass. 117, 124 (2001) ("[W]here, as here, a disabled parent fails to make a timely claim that [DCF] is providing inadequate services for [her] needs, [she] may not raise noncompliance with the ADA or other antidiscrimination laws for the first time at a termination proceeding").
Decrees affirmed.
By the Court (Kafker, C.J., Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 29, 2015.