Opinion
19-P-1138
08-13-2020
ADOPTION OF WALLACE (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
This is an appeal by the mother from decrees issued by a judge of the Juvenile Court finding the mother unfit to assume parental responsibility for her sons Wallace and Eric, and terminating her parental rights to them. We discern no cause to disturb the decrees and affirm.
Background. We summarize the relevant facts and procedural history from the judge's findings and the record. The mother has four children, each with a different father. The two children at issue here, Wallace and Eric, are the mother's two youngest children. Wallace was born in April 2010, and Eric was born in October 2015.
The mother's two older sons, who are not a part of this proceeding, were born in April 2002 and August 2004.
Following an investigation of a report of abuse of Eric and neglect of Wallace, on March 1, 2016, the department filed a care and protection petition pursuant to G. L. c. 119, § 24, on behalf of Wallace and Eric. Temporary custody was granted to the department.
1. Abuse of Eric. In February 2016, the mother and Eric's father were in a relationship, and they lived together with Eric and Wallace. On Monday, February 29, 2016, when Eric was about five months old, the mother and Eric's father brought Eric to the family pediatrician's office. The pediatrician was shocked to observe that Eric's left leg was "grossly misshapen," "abnormal," and swollen. When asked about the leg injury, the mother said that she thought staff from early intervention had been "rough" with Eric five days earlier when they were evaluating him. She first noticed Eric's knee was swollen on Thursday, February 25, and observed that it stayed swollen through the weekend.
The mother's cousin testified at trial that she saw Eric on Friday, February 26 and Saturday, February 27 but did not observe him to have any bruising or swelling or to be in distress.
The pediatrician instructed the parents to take Eric to Hasbro Children's Hospital (Hasbro). X-rays taken at Hasbro revealed that Eric had thirteen bone fractures, including two fractures of his left femur, and eleven others of his legs and ribs that were at different stages of healing. When the Hasbro pediatrician asked about how the leg injury occurred, the mother and Eric's father provided the same explanation, i.e., rough handling by early intervention staff. The Hasbro pediatrician testified that the type of injuries suffered by Eric would not be caused by accidental trauma, and she formed the opinion that the injuries were caused by child abuse.
Earlier in February 2016, the mother brought Eric to the emergency room for a respiratory issue, for which he received a chest x-ray. Neither during this hospital visit nor during a follow-up meeting with the family's pediatrician did anyone observe that Eric was in pain or had suffered broken ribs. The chest x-ray also did not reveal broken ribs, but the Hasbro pediatrician opined that the type of chest x-ray used to investigate respiratory issues would not necessarily reveal rib fractures.
The mother testified that, until police interviewed the father later that day, she had "no concern" that Eric's injuries were caused by his father. However, the judge found that it was not credible that the mother did not know about the abuse before this time.
The mother knew that she and Eric's father were Eric's only caretakers. She was also aware of allegations against Eric's father regarding abuse of other children, including an infant. Moreover, the mother did not complain about nor file a report about her perception of how the early intervention staff had handled Eric.
On March 1, 2016, Eric's father went to the police station and, after being read his Miranda rights, admitted to grabbing, squeezing, and twisting Eric's leg multiple times on February 25, as well as "hugging [Eric's] chest too tightly" on previous occasions. Eric's father admitted that the abuse started when Eric was around three months old and that the abuse happened "once or twice a week." The judge found that Eric's injuries were a direct result of his father's abuse. There was no evidence that the mother inflicted any of Eric's injuries.
2. Mother's history with the department. Since 2003, the mother and her children have been the subjects of several allegations of abuse by the mother's partners. In June 2011, following an allegation of neglect and an investigation, the department removed the two older children and Wallace from the custody of the mother and Wallace's father, who was then the mother's live-in boyfriend. The investigation revealed that the mother and Wallace's father were regularly using and were addicted to heroin and other illegal substances. The department filed a care and protection case on behalf of the three children (first care and protection case).
Since June 2011, the mother has not tested positive for illegal substances, and the trial judge found that "there [was] no preponderance of evidence contradicting [her] assertion" of sobriety since June 2011.
In September 2011, another report was filed alleging past physical abuse of the two older children by Wallace's father. The second eldest child reported that he told the mother about the abuse and that she was sometimes present during the abuse. The eldest child also alleged that the mother told him not to tell others about the abuse. The judge took the children's statements only to show the mother's knowledge and acceptance of the abuse. At Wallace's father's criminal trial, the mother denied contemporaneous knowledge of the abuse. In the matter before us, the Juvenile Court judge found the mother's denials not credible.
As a result of the first care and protection case, the two older children were placed with their respective fathers, while the goal for Wallace was reunification with the mother. Wallace was not reunified with the mother until May 2015. By then, the mother was in a live-in relationship with Eric's father and pregnant with Eric.
Reunification of Wallace and the mother was finally effected due to a concern that Wallace's foster parent (his paternal grandmother) was allowing contact between Wallace and his father.
3. The present care and protection case. After the abuse of Eric came to light on February 29, 2016, the department filed a care and protection petition, pursuant to G. L. c. 119, § 24, on behalf of Wallace and Eric. On March 7, 2016, the department social worker assigned to the family during the relevant period met with the mother to present a new service plan. At this meeting, the social worker showed the mother a picture of Eric in a hospital bed and made a statement to the effect of, "This is what you did to your baby," even though Eric's father had already admitted to the abuse. The social worker denied making such a statement. The judge did not find her credible on this point and found that the statement reflected her "predisposed attitude" to the case.
The social worker recommended that the mother engage in cognitive behavioral therapy (CBT) focused on trauma, reasoning that the mother's mental health issues might affect her ability to make positive decisions as to her children's safety. Since the mother's current therapist was not CBT-qualified, the social worker sent the mother a list of local, qualified therapists. The social worker also recommended a support group called "Mothers Overcoming Domestic Violence." Although the mother signed up for the group, she did not attend it.
The mother testified that she stopped engaging with some services because the department said she would never be reunited with her children. The trial judge found that the mother had a "checkered history" with services.
4. Proposed plans for Wallace and Eric. For Wallace, the department proposed a guardianship with his paternal aunt, with whom he had been living since April 2016. He is settled in that home, is medically up to date, and is engaged in extracurricular activities. He is "very close" to his aunt and has good relationships with his aunt's partner and child. Wallace's aunt is providing a "safe, stable home for [him] and is meeting his educational, emotional, and physical needs." The trial judge found that this guardianship plan served Wallace's best interests.
For Eric, the department proposed a plan of adoption. The nonkinship foster family with whom Eric was initially placed indicated a willingness to adopt him. Since February 2016, Eric's fractures have healed well. He has been observed to be smiling, laughing, and happy in that home, and he goes to the preadoptive parents for affection and comfort. The judge found that the adoption plan was in Eric's best interests.
Discussion. "To terminate parental rights to a child . . ., a judge must find by clear and convincing evidence, based on subsidiary findings proved by a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference." Id. at 606-607.
First, the mother argues that there was not clear and convincing evidence of her unfitness to support the termination of her parental rights to both Wallace and Eric. Specifically, the mother argues that (1) the finding that she unreasonably delayed seeking medical treatment for Eric was unfounded, (2) the conclusion that she repeatedly failed to separate from her abusive partners was unfounded, (3) the trial judge did not account for the bias in the testimony of the social worker, and (4) the trial judge overlooked evidence favorable to the mother and failed to demonstrate that close attention was given to the evidence.
In the alternative, the mother argues that even if the finding of unfitness as to Eric is upheld, the finding of unfitness was improper as to Wallace because there was no evidence that Wallace was ever abused or witnessed abuse. Lastly, the mother also argues that Wallace's guardianship plan is not in his best interests because he may be exposed to his father. We address each in turn.
1. Finding of unfitness as to both children. a. Delay in seeking medical treatment. The mother argues that it was error to find that she unreasonably delayed seeking medical treatment for Eric in February 2016. She points to evidence that even medical professionals who interacted with Eric did not notice his broken ribs, that another family member did not observe Erik in distress while he had a broken leg, and that she only delayed a few days while taking ameliorative measures regarding Eric's injured leg.
The mother's argument is misplaced. The trial judge did not explicitly find that the delay in seeking medical treatment for Eric was unreasonable. Rather, the thrust of the judge's findings was that the mother's response to Eric's injuries exemplified a pattern of denying abuse or defending her abusive partners at the expense of her children's safety.
One finding was that the emergency room doctor "opined" that it would have been appropriate for the mother to have sought medical assistance regarding the broken leg earlier, but the judge did not go as far as to make a finding of unreasonableness.
Relevant to this conclusion are the subsidiary findings that the mother blamed the early intervention staff for Eric's injured leg, that the mother was not credible as to this assertion because she did not report early intervention staff, and that at the time of this abuse, she was aware that Eric's father was alleged to have abused other children. Based on our review of the record, these subsidiary findings are not clearly erroneous. They support the conclusion that the mother attempted to defend the perpetrator of the abuse at the expense of her child's safety, and therefore support an ultimate finding of unfitness. See Adoption of Larry, 434 Mass. 456, 472 (2001) (upholding finding of mother's unfitness based on inability to protect child from abuse by father).
b. Inability to separate from abusive men. The mother contends that it was error for the judge to conclude that "[the] mother has been either incapable of or willfully refusing to separate from abusive men or allow them to care for her children." Specifically, the mother emphasizes the facts that she has separated from Wallace's and Eric's fathers and refrained from romantic relationships in general and that she has remained substance free since 2011.
The mother also suggests that she should not be penalized for having relationships with the same men with whom the department has placed her older two children. However, this argument is not relevant to an unfitness analysis regarding the mother's younger two children. Any deficiencies in the department's placement of the two older children does not excuse the mother for her own parental deficiencies.
The mother also points out that the department knew of Eric's father's history of child abuse, but still allowed Wallace to return to the mother's custody while she was in a relationship with Eric's father. We note that the department never approved Eric's father as a caretaker of Wallace.
However, we believe that the judge properly concluded that, based on subsidiary findings supported by the record, the mother's past conduct can and should be weighed in considering her future ability and performance as a parent. See Custody of Two Minors, 396 Mass. 610, 621 (1986); Adoption of Rhona, 57 Mass. App. Ct. 479, 485 (2003). The mother has repeatedly failed to separate from abusive men, even when she had knowledge of the men's abuse of her children. We point to the instances when the mother turned a blind eye to Wallace's father severely and repeatedly abusing her two older children and when the mother defended Eric's father against allegations of child abuse. This pattern of behavior supports a finding of unfitness. See Adoption of Larry, 434 Mass. at 472.
Contrary to the mother's suggestion, her recent abstinence from drugs has not precluded this pattern of behavior, as Eric suffered severe abuse in 2016, while she has purportedly been sober since June 2011. The mother has also failed to engage in counselling and other services recommended by the department, which also supports the conclusion that her past conduct can inform her future ability as a parent.
c. Social worker's bias. The mother contends that the trial judge erroneously relied on the social worker's biased testimony. Relatedly, she contends that the social worker assigned superfluous service tasks that were "designed to guarantee" the mother's noncompliance and ultimately the termination of her parental rights. We disagree and give due deference to the trial judge's assessment of the social worker's credibility.
First, "the judge's assessment of the credibility of the witnesses and the weight of the evidence is entitled to deference." Adoption of Elena, 446 Mass. 24, 31 (2006). See Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019). In general, we do not disturb the trial judge's credibility determinations on appeal. Id. The judge explicitly noted the social worker's bias, finding her "approach went beyond upset to being judgmental, impacting her objectivity." The judge "filtered [the social worker's] testimony mindful of possible bias" and "parsed the credibility issue separately as to the various areas of her testimony."
Second, there is no clear error in the judge's findings that the mother was ultimately accountable for her failure to complete service plan tasks. The mother did not avail herself of the local therapists recommended by the social worker. Moreover, the mother had a history of not completing service plan tasks.
There is also no merit to the argument that the service plan tasks were not related to the mother's current deficiencies. The social worker explained how the assigned tasks were related to those deficiencies, and the judge found the explanations credible. For example, the social worker assigned trauma-based CBT to address some of the underlying causes of the mother's complicity in the abuse of her children.
d. Specific and detailed findings. Lastly, the mother contends that the trial judge overlooked evidence favorable to the mother, and failed to demonstrate that close attention was given to the evidence. We disagree; the judge's findings were thorough, detailed, and amply supported by the record. We are satisfied that the judge's findings were "specific and detailed," that they "demonstrate that he gave close attention to the evidence," Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017), and that he did not ignore "[t]roublesome facts." Adoption of Stuart, 39 Mass. App. Ct. 380, 382 (1995).
The mother also contends that the family pediatrician was not credible, however we do not disturb such credibility determinations on appeal. See Adoption of Querida, 94 Mass. App. Ct. at 778.
For example, after going into great detail to explain whether there was evidence that the mother was in a new relationship with a man since 2016, the judge duly found that there was no such credible evidence, a position maintained by the mother.
2. Finding of unfitness as to Wallace. A parent may be fit to raise one child and unfit to raise another, in circumstances where the needs of the two children differ. See Petition of the Catholic Charitable Bureau of the Archdiocese of Boston, Inc. to Dispense with Consent to Adoption, 395 Mass. 180, 185 n.6 (1985); Adoption of Cesar, 67 Mass. App. Ct. 708, 712 (2006). The mother argues that, even if we affirm the finding of unfitness as to Eric, she is fit to parent Wallace because there was no evidence that Wallace was ever abused or witnessed abuse.
The mother also contends that the judge clearly erred in finding or admitting evidence that Wallace told a social worker that "he did not want his legs broken" at his mother's home. The record reflects that Wallace made this statement not to a social worker directly, but to his teacher, who then reported it to Wallace's proposed guardian. This discrepancy is not material to the ultimate finding of unfitness.
The mother's argument is misplaced. Whether or not Wallace directly experienced abuse or was exposed to abuse is not dispositive. Rather, of primary importance is the prognostic value of the mother's demonstrated inability or unwillingness to protect her children from abuse. Even if Wallace never directly experienced or witnessed abuse, we need not "wait for inevitable disaster to happen." Adoption of Rhona, 57 Mass. App. Ct. 479, 485 (2003), quoting Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997). Moreover, a judge "may consider [the mother's] past conduct to predict future ability and performance." Id., quoting Adoption of Katharine, supra at 32-33. See Custody of Two Minors, 396 Mass. 610, 621 (1986).
The judge properly considered the mother's past conduct in evaluating her future inability to protect Wallace from abuse. As discussed in section 1(b), supra, the mother has consistently and repeatedly failed to separate herself from abusive men. Relatedly, her pattern of denying or minimizing abuse against her children supports a conclusion that she will be unable to protect Wallace from abuse in the future.
3. Wallace's guardianship plan. In a termination decision, a trial judge is required to consider the department's proposed plan as part of its consideration of the child's best interests. See G. L. c. 210, § 3 (c); Adoption of Nancy, 443. Mass. 512, 515 (2005). The mother argues that the proposed guardianship plan for Wallace is not appropriate because the identified guardian, Wallace's paternal aunt, may allow Wallace to come in contact with his father, who has been convicted of abusing the mother's older children. The approval of a placement plan "falls to the sound discretion of the trial judge," and our review on appeal is one of "substantial deference." Adoption of Bianca, 91 Mass. App. Ct. 428, 434 (2017). The central question is whether the guardianship plan is in the child's best interests. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).
Wallace has been living with his paternal aunt since April 2016. The judge found, and the record supports, that his aunt is providing a stable home for Wallace, and that Wallace is happy there. In contrast to the mother's contention, there is no evidence that Wallace has had contact with his father since he has been placed with his aunt; in fact, the record notes that "Wallace does not have contact with his biological father." There was no abuse of discretion in approving this guardianship plan.
Decrees affirmed.
By the Court (Lemire, Singh & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 13, 2020.