Opinion
16-P-1424
05-26-2017
ADOPTION OF FLETCHER (and three companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case involves the welfare of four children to whom we refer as Fletcher (born in 2000), Sara (born in 2001), James (born in 2003), and Ellen (born in 2005). After a twelve-day trial, a Juvenile Court judge issued decrees that, inter alia, found the four children in need of care and protection, found the mother unfit, granted permanent custody of the children to the Department of Children and Families (DCF), and terminated the mother's parental rights as to them. On the mother's appeal, we affirm.
The judge also terminated the parental rights of James's father, but he has not appealed. The father of Fletcher, Sara, and Ellen surrendered his parental rights.
"While a decision of unfitness must be supported by clear and convincing evidence, a judge's findings will be disturbed only if they are clearly erroneous." Adoption of Paula, 420 Mass. 716, 729 (1995) (citation omitted). The judge made 548 factual findings that—together with the rulings of law—total eighty-four single-spaced pages. The mother has targeted only a few of those findings as clearly erroneous.
Having reviewed the trial record, we conclude that the judge's findings overall are extremely thoughtful and balanced. In fact, many of the key underlying facts were uncontested. In any event, there was robust evidentiary support that under the mother's watch, the children were subjected to a wide variety of abuse and neglect, including physical abuse by the mother, sexual abuse (by others), lack of supervision, and inadequate housing (including extremely unsanitary conditions). The mother suffers from mental illness and anger management issues and, although she has been compliant with her service plan, there was support for the judge's findings that she had not adequately thereby addressed her deficiencies. Little would be gained by repeating the detailed subsidiary findings that document the mother's unfitness.
We pause to note that the mother has shown evident affection toward her children, and none of the judge's findings negate this. Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment or a determination that the mother does not love her children. The inquiry instead is whether the parent's deficiencies or limitations "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
To the extent that the mother can point to actual errors in the judge's fact finding, these errors are of little consequence. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003) (affirming termination decree where errors in fact finding were "not central to the ultimate conclusion of unfitness"). A good example has to do with the date by which the mother admitted to having hit Fletcher on a specific occasion. The trial record reveals that the mother admitted on October 23, 2012, that she had struck Fletcher a few weeks earlier. The judge erroneously attributed the date of her admission as October 23, 2013. Even if the error were seen as something other than the typographical error it appears to be, it would suggest at most that the mother continued to deny her action for a longer period.
The bulk of the mother's brief addresses the judge's references to reports of alleged neglect or abuse made to DCF pursuant to G. L. c. 119, § 51A, and to reports made by DCF pursuant to G. L. c. 119, § 51B. In accordance with existing case law, the judge made it clear that she was citing the numerous § 51A reports only "to set the stage." See Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990). She also made it clear that she was considering the § 51B reports "for statements of fact ... and not for purposes of diagnosis, prognosis, and evaluation." See ibid. The mother has not supplied a basis for declining to take the judge at her word that she followed existing case law. Attempting a different tack, the mother urges us to modify the existing evidentiary standards applicable to § 51A and § 51B reports. In the mother's view, such "reports should be presumptively inadmissible." We agree with DCF that the mother waived this issue by not raising it below. See Petition for Revocation of a Judgment for Adoption of a Minor, 393 Mass. 556, 563 n.12 (1984). Moreover, even if this were not the case, we are not persuaded by the mother's arguments that we should "recalibrate" the evidentiary rules at this time.
We additionally note that the judge redacted portions of the § 51B reports in response to line-by-line objections that the mother made.
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We conclude that the judge did not commit an error of law, and her supported findings amply demonstrate the mother's unfitness by clear and convincing evidence. Of course, "[u]nfitness does not mandate a decree of termination." Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). But at the same time, it is unfair to leave the children in limbo indefinitely. See Adoption of Nancy, 443 Mass. 512, 517 (2005) ("[I]t is only fair to the children to say, at some point, 'enough' "). With the passage of time, it becomes increasingly important that they obtain a stable, safe, and nurturing home environment.
The children present a wide variety of special needs including depression (shared by all four), posttraumatic stress disorder, anxiety, learning disorders, and behavioral problems. They have made significant improvements in their respective foster placements, and all four support termination of the mother's rights. In the end, "[w]hile courts protect the rights of parents, 'the parents' rights are secondary to the child's best interests and ... the proper focus of termination proceedings is the welfare of the child.' " Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting from Adoption of Gregory, 434 Mass. 117, 121 (2001). With this overarching standard in mind, we discern no error in the judge's terminating the mother's rights as to all four children.
Decrees affirmed.