Opinion
14-P-220
03-11-2015
ADOPTION OF EDEN (and two companion cases).
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
This is an appeal from decrees terminating the parental rights of the mother and father to their three minor children, Eden, Sam, and Mark. Both the mother and the father appeal, and we address each case in turn.
With respect to the mother, she argues that the evidence presented at trial did not clearly and convincingly demonstrate a nexus between the mother's alleged mental illness and harm to the children while they were in her custody. See Adoption of Peggy, 436 Mass. 690, 701 (2002) ("Before a judge may award permanent custody of the child to the department, the judge must find, by clear and convincing evidence, that the natural parent is unfit to further the welfare and best interests of the child"). The judge's determination of the mother's unfitness, however, was supported by clear and convincing evidence, without regard to whether or not her mental illness was the cause of her erratic behavior. The amply supported facts found by the judge more than suffice to show unfitness.
The judge documented many specific instances of behavior that either harmed the children or placed the children at a great risk of harm. The judge found, and it is not contested, that Eden, the oldest child, was left at home when she was five years old to babysit the then one year old middle child, Sam, who has sickle cell anemia. The judge found that the mother was late for almost all visits with the children following their removal from her custody. Her behavior at the visits was inappropriate: the visits frequently ended either with the parents being escorted out by the police or the visit being cut short by argument. On one visit the mother tried to feed a yogurt container that was packed for Sam to then three month old Mark, which was not age appropriate, leading to his vomiting. The judge found that at one visit the mother slapped Eden three times in the face. When the caseworker attempted to intervene and end the visit, the mother began screaming that she could do anything that she wanted to her children. At another visit at which she arrived late, when the social worker indicated that the visit was over and the mother must return Mark, the mother refused to hand Mark back. A Worcester police lieutenant assigned to the family's visits became involved. The mother's actions in moving Mark over her shoulder to prevent his return to the social worker resulted in Mark's head being knocked against the wall. At a meeting with the caseworker, the mother began yelling at the caseworker, and the father put his hands over the mother's mouth. The mother and father then began hitting each other. Due to the commotion, three or four Worcester police officers had to come to the room, and the mother was arrested, shackled, and carried from the room yelling and screaming.
The judge also found among other things that the parents do not appreciate the medical needs of the children, which are considerable. He found that Sam was hospitalized for four days shortly after coming into the Department of Children and Family's (department's) custody, and required a blood transfusion apparently because of his sickle cell anemia. Sam also has learning disabilities and does not have appropriate language skills at age five, does not speak more than one or two words, and needs constant work with his speech. He has also suffered from fevers and dehydration. He requires constant medical attention. Eden is on an individualized education plan (IEP) for global learning disabilities, and at age eight cannot read or write and has comprehension difficulties. While the mother acknowledged that Sam has sickle cell anemia, she adamantly denied at trial that any of the children have any special medical needs. When the mother was questioned as to whether her children have any special needs, she responded, "[A]bsolutely no." Eden had not seen a medical professional for three years when this case was first opened, and she was five years old.
The record as a whole, including the facts outlined above, thus supports the trial judge's determination of unfitness by clear and convincing evidence. Therefore, to the extent it relates to the mother, the decrees are affirmed.
The father's case -- although replete with sufficient evidence -- presents a somewhat more complicated issue. The department had many interactions with the family between August, 2009, and January, 2011. But the instant case has its genesis in an allegation of sexual abuse by the father that was made in January, 2011. The judge's opinion reports the allegations in great detail. On that date, two G. L. c. 51A, reports were filed by mandated reporters alleging the sexual abuse of Eden by the father. On January 1, 2011, the mother had brought Eden to the hospital to be examined. The mother stated that she noticed Eden's vaginal area to be "odd in shape," and that Eden was complaining of pain while urinating and walking. After Eden made the statement that the father had "put tail in me" pointing to her vaginal area, the mother called 911, and Eden was brought to the hospital to be evaluated. Eden reportedly told the EMS worker during the ride to the hospital that she wanted to go to a safe place, as the father had knives with him and would harm people in the home. During a SAIN interview, apparently not viewed by the judge but described by him, "[Eden] stated that the mother and father both told her to lie about any sexual abuse and to instead say that a boy had touched her, because the mother did not want father to go to jail because they had 'too many babies' to take care of and the mother did not have any money. Eden stated that the sexual abuse happened on more than one occasion -- 'a lot, two times, no I mean a lot.' She said the incidents happened when the mother was at church and the father came in the room where she was sleeping and took her jeans off but not her underpants as she was not wearing any, and then put his 'tail' in her."
The father was arraigned on charges relating to this allegation and detained by immigrations and customs enforcement (ICE) because he was in the country illegally and was held on an ICE detainer. On January 4, 2011, the department filed an emergency care and protection petition seeking custody of the children, which was granted, and it was then that the children were removed from the mother's care.
The judge's opinion reports that after the children were placed in foster care by the department, the "mother admitted that she followed [Eden] to school to find out where she was going. At the school, the mother pretended to be someone else interested in sending her daughter to that school, and asked for a tour to gain access to the school. However, at some point, the mother wandered away from the tour and found Eden and brought her to a downstairs bathroom in the school. The mother had brought [Eden] into a bathroom stall and was telling her 'to speak the truth and stop making up stories' regarding the recent allegations of sexual abuse that [Eden] had made against father."
Shortly after this incident Eden recanted her sexual abuse allegations. The district attorney's office ultimately filed a nolle prosequi in the father's criminal case. The mother was subsequently charged with intimidation of a witness. When arrested she was sent to a psychiatric hospital. At the time of trial that charge was still pending.
If any of these grave allegations of sexual abuse are true, even standing alone they would be more than sufficient to warrant a finding of unfitness and termination of the father's parental rights under the appropriate constitutional standard. These allegations form a center of gravity in the judge's opinion. However, despite their apparent significance, the judge made no finding that the sexual abuse took place. Nor did he say that it had not taken place, or even that he could not determine by a preponderance of the evidence (the appropriate standard for findings of fact in cases like this) that it had. Rather than making a finding on the matter at all, he simply recited the evidence, stating "there have been serious allegations against father concerning the sexual abuse of [Eden]. These allegations resulted in criminal charges in a ten (10) month detention of the father. The charges were ultimately dropped."
There is thus a critical ambiguity about the basis for the judge's decision. It is a bedrock principle that a parent's parental rights may not be terminated on the basis of an unproven allegation, even one as grave as this. See, e.g., Custody of Eleanor, 414 Mass. 795, 800-801 (1993) (stating that "one . . . later withdrawn allegation" of sexual assault "in the absence of any corroboration or physical evidence of sexual abuse . . . cannot be said [to establish] parental unfitness . . . by clear and convincing evidence"). Yet there is neither an explicit statement by the judge that he did not rely on the allegations of sexual abuse or that he concluded that sexual abuse in fact occurred.
The department urges that we affirm on the basis that, even assuming the judge did not find by a preponderance of the evidence that the sexual assault occurred, the other evidence on which he relied is in itself sufficient to support his decree. To be sure, our courts have held that where an opinion terminating parental rights contains a small number of minor factual errors, we may nonetheless affirm the judgment without recourse to a remand to the trial court. See, e.g., Adoption of Sherry, 435 Mass. 331, 336 (2001) (affirming termination of parental rights despite error in excluding information at trial; stating "we need not disturb a judgment when error did not affect the outcome"); Adoption of Peggy, 436 Mass. at 702 (affirming termination of parental rights despite two erroneous findings because they "relate only marginally, if at all, to the judge's ultimate conclusion of unfitness, [thus] we consider them harmless"). But, even assuming the other evidence, standing alone, would have supported the termination decree with respect to the father, given the prominence of the alleged sexual abuse in the judge's opinion, that approach would not be appropriate here.
Consequently, while retaining jurisdiction, we remand the matter to the trial judge for clarification of the basis for the judge's determination of the father's unfitness. The judge shall, within forty-five days, provide a written explanation clarifying the basis of his determination, and such shall be filed by the parties with the Appeals Court. To be clear, we do not read the judge's opinion necessarily to rely on the allegations of sexual abuse, nor are we saying that the decrees as to the father cannot stand if it does not. We conclude the opinion is ambiguous. If, and only if, the basis for the decrees as to the father was in whole or in part the alleged sexual abuse, the judge shall clarify whether he finds by a preponderance of the evidence that sexual assault did occur. Alternatively, if the judge is of the view that the father is unfit, without consideration of the allegations of sexual abuse, the judge shall clarify his view to that effect. There shall be no further briefing pending further order of this court. Appellate proceedings as to the father are stayed pending further order of this court.
The decrees as to the mother are affirmed.
So ordered.
By the Court (Green, Rubin & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 11, 2015.