Opinion
No. 14–P–5.
09-30-2014
ADOPTION OF VINCE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother and father of a minor child, Vince, appeal from decrees entered in the Juvenile Court terminating their parental rights and approving the permanency plan proposed by the Department of Children and Families (department) whereby Vince will be placed with the preadoptive couple with whom he has lived since September, 2012. Both parents argue that the judge did not give proper consideration to their proposal that Vince be placed with his maternal aunt. In addition, the mother argues that the judge's intrusive questioning of the witnesses deprived her of a fair trial, and the father argues that the judge did not comply with the Commonwealth's sibling visitation statute. We affirm.
Background. When he was approximately five months old, Vince was observed by his primary care doctors to have rashes, excoriations, and hypopigmented marks on his body. They referred him to a pediatric dermatologist, who noticed a large firm mass on his shoulder. Because of the possibility of cancer, the dermatologist recommended further investigation; however, the parents did not wish to pursue the issue. With great difficulty, Vince's doctors convinced the parents to obtain a consultation at Dana Farber Cancer Institute, where they reluctantly agreed to some testing. When an MRI showed possible malignancy, and a biopsy was inconclusive, the doctors recommended additional tests. The parents resisted, but eventually brought Vince back to the hospital. They rejected other tests but allowed a chest x-ray to determine whether the mass had progressed to Vince's lungs. The x-ray revealed multiple rib fractures consistent with child abuse.
Vince was admitted to Children's Hospital where further x-rays and a CAT scan showed fractures to his right foot and numerous skull fractures consistent with “abusive head trauma.” The mass on Vince's shoulder ultimately was diagnosed as secondary to trauma. Doctors also observed that Vince had injuries consistent with human bite marks, including one that appeared while the father was visiting. Further medical assessment resulted in additional diagnoses of “failure to thrive,” and developmental disabilities.
At all relevant times, Vince's only caretakers were the parents and his maternal grandmother, who was staying in the home temporarily. None of them had a plausible explanation for his injuries. Although the parents claimed that the injuries resulted from a medical condition, tests ruled out medical causes, including “brittle bone disease.” Significantly, Vince suffered no new fractures after being placed in foster care.
During the course of this case, the parents proposed that if Vince were not returned to them, he should be placed with his maternal aunt. The department interviewed the aunt, but eliminated her as a potential placement because she did not believe that Vince's injuries were inflicted, and she was hostile to the department workers who tried to evaluate her. In her trial testimony, the aunt denied that the parents could have inflicted the injuries and stated that she was unsure whether the injuries were inflicted. She said that she trusted her sister and brother-in-law and thought they were good parents. While being asked about visitation arrangements, she indicated that she would not be concerned about Vince being unsafe if he were left alone with the mother or father.
At the time of trial, the aunt was the permanent guardian of Vince's younger brother. That child is not a subject of this proceeding.
Discussion. 1. The adoption plan. The “driving factor” in a determination of custody is the “best interests of the subject child.” Adoption of Irene, 54 Mass.App.Ct. 613, 617 (2002). We will not disturb the judge's decision absent an abuse of discretion or clear error of law. Adoption of Hugo, 428 Mass. 219, 225 (1998). There is none here.
Contrary to the parents' position, the judge's finding that the aunt “denied that the parents or maternal grandmother inflicted the injuries” is well-supported by the aunt's own testimony. Furthermore, given the overwhelming evidence that Vince suffered extreme child abuse while in the parents' care, the judge could conclude in his discretion that placement with the aunt posed unacceptable risks to Vince's safety. Even if placement with a relative is “a desirable aim,” it “cannot be permitted to generate a placement decision that is not otherwise in the child's best interests.” Adoption of Irene, supra at 622–623.
2. Judge's questioning. We are constrained to agree with the mother that the judge was inappropriately intrusive during the proceedings and, at times, asked questions that were adversarial in nature. This was error. Nevertheless, contrary to the mother's position, the error was not structural. See Adoption of Seth, 29 Mass. App Ct. 343, 351 (1990). We therefore review to determine whether the error was prejudicial, or, if the claim was unpreserved, whether the error created a substantial risk of a miscarriage of justice. In the present case, while we do not condone the judge's conduct, we discern no prejudice much less a substantial risk of a miscarriage of justice, in view of the prodigious evidence supporting the decree.
This is the fourth time that this court has been required to consider whether this judge's extensive questioning was inappropriate and prejudicial. See Adoption of Norbert, 83 Mass. App Ct. 542 (2013) ; Adoption of Terrill, 70 Mass App.Ct. 1115 (2007); Adoption of Nurit, 71 Mass. App Ct. 1104 (2008).
We are unpersuaded by the mother's strained contention, made for the first time in a postargument letter, that counsel preserved her rights by interjecting at one point, “[A]ren't I allowed to ask questions?” In any event, the result is the same under either standard of review.
3. Sibling visitation. The father argues that the judge did not comply with the sibling visitation statute, G.L. c. 119, § 26B(b ), inserted by St.2008, c. 176, § 84. Because the issue was not raised at trial, it is waived. Adoption of Gillian, 63 Mass.App.Ct. 398, 408 (2005).
Vince has recourse to seek sibling visitation pursuant to G.L. c. 119, § 26B(b ). Adoption of Gillian, supra at 408–409 (prior version of statute). See Adoption of Pierce, 58 Mass. App Ct. 342, 347–348 (2003).
Decrees affirmed.