Opinion
11-P-1741
02-08-2012
ADOPTION OF PEARCE (and two companion cases).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother's primary argument in this case is that the judge improperly relied on hearsay evidence in reaching his decision, particularly statements made by the children about particular acts of abuse by the mother. The judge, however, explicitly stated that he was not relying on those statements for their truth. The mother has not shown (and on this record, cannot show) that the judge's statement was inaccurate. Consequently, there was no error. The judge was also well within his discretion in crediting the expert who said that the oldest child's alarming behaviors were a result of abuse and neglect he suffered while in the mother's care and in inferring that the same is true for the other children as well. The judge's findings do not depend upon whether the particular acts of abuse of the children took place. There was no clear error in the judge's finding that, even assuming there was domestic violence in Louisiana for which the father is responsible, the mother is responsible for neglect and abuse that profoundly harmed the children. The findings of the judge including the findings described above, the findings about the condition in which the three children were found when removed from the mother's care after having spent more than two years away from their father, and the judge's findings about the mother's continuing inability to care for the children demonstrate by clear and convincing evidence that the mother is not fit to parent any of the children. See Care & Protection of Three Minors, 392 Mass. 704, 711-712 (1984). We think that adequate attention was given during the period subsequent to the children's removal from the mother's care, and in the proceeding below, to whether the mother might have been fit to parent any one of the children individually. Further, termination of parental rights was appropriate in light of, among other things, the judge's findings that the children's progress has tended to deteriorate following visits with the mother. See Custody of a Minor, 21 Mass. App. Ct. 1, 8 (1985) (upholding a finding of unfitness and grant of custody to the Department of Children and Families [department] where, among other considerations, the child suffered severe negative reactions to her mother's visits). Finally, we see no abuse of discretion in the judge's determination that each posttermination plan proposed by the department was in each respective child's best interest. See Adoption of Hugo, 428 Mass. 219, 225-226 (1998). The decrees are affirmed.
So ordered.
By the Court (Graham, Rubin & Milkey, JJ.),