Adoption of Eden ( 2015 )

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14-P-220 Appeals Court
ADOPTION OF EDEN (and two companion cases1).
No. 14-P-220.
Worcester. October 2, 2014. - September 11, 2015.
Present: Green, Rubin, & Agnes, JJ.
Minor, Care and protection. Parent and Child, Care and
protection of minor. Practice, Civil, Care and protection
proceeding. Child Abuse.
Petition filed in the Worcester Division of the Juvenile
Court Department on January 4, 2011.
Following review by this court, 87 Mass. App. Ct. 1109
(2015), the case was heard by Anthony J. Marotta, J.
Tamar M. Gureghian for the mother.
S. Michael Fournier for the father.
Roy Vincent Montoya for Department of Children and
Families.
Christine M. Durkin for the children.
RUBIN, J. This case involves the proper role of
allegations in decisions involving the termination of parental
1
Adoption of Sam and Adoption of Mark. The children's
names are pseudonyms.
2
rights, and the proper role of the appellate courts in reviewing
those decisions. Both the mother and the father appealed in
this case from decrees terminating their parental rights to
their three minor children, Eden, Sam, and Mark. We affirmed
the decrees with respect to the mother, but remanded the
father's case to the Juvenile Court judge for clarification of
the basis of his decision with respect to the father. See
Adoption of Eden, 87 Mass. App. Ct. 1109 (2015). The judge
issued supplemental findings of fact and conclusions of law, and
we now affirm.
1. Background. There was never any doubt in this case
that the evidence was sufficient to support the termination of
the father's parental rights. 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"). In his original
findings of fact and conclusions of law, the judge documented
many specific instances of behavior that either harmed the
children or placed the children at a great risk of harm. Among
other things, 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. After the Department of Children and
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Families (department) obtained custody of the children, parental
visits with the children frequently ended either with the
parents being escorted out by the police or the visit being cut
short by argument. At a meeting with a department 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'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. At the time the department became involved with
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the family, Eden was five years old and had not seen a medical
professional for three years.
The judge's initial decision, however, was ambiguous about
the extent to which the judge relied on allegations or findings
of sexual abuse by the father. 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 decision reports the allegations in great
detail. On January 4, 2011, 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 her daughter
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 telephoned 911, and Eden was
brought to the hospital to be evaluated.
Eden reportedly told the emergency medical services 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 Sexual Abuse Intervention Network (SAIN)
interview, apparently not viewed by the judge but described by
him, "[Eden] stated that Mother and Father both told her to lie
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about any sexual abuse and to instead say that a boy had touched
her, because Mother did not want Father to go to jail because
they had 'too many babies' to take care of and 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 Mother was at church and
that her 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 United States Immigration and Customs
Enforcement (ICE) because he was in the country illegally, and
he 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 decision reports that after the children were
placed in foster care by the department, "Mother admitted that
she followed [Eden] to school to find out where she was going.
At the school, 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, Mother
wandered away from the tour, found her daughter and brought her
to a downstairs bathroom in the school. Mother had brought her
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daughter 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 the termination trial that charge was still pending.
These allegations formed a center of gravity in the judge's
initial decision. However, despite their apparent significance
to his decision, the judge made no finding with respect to these
allegations. As judicial decisions sometimes do, his simply
recited the evidence, stating "there have been serious
allegations against Father concerning the sexual abuse of
[Eden]. These allegations resulted in criminal charges and a
ten (10) month detention of Father. The charges were ultimately
dropped."
2. Analysis. If the judge meant that among the bases for
his decision to terminate the father's parental rights were the
serious allegations of sexual abuse, it would have been our
responsibility to vacate the decrees. It is a bedrock principle
that parental rights may not be terminated on the basis of an
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unproven allegation, even one as grave as this. See, e.g.,
Custody of Eleanor, 414 Mass. 795, 800-801 (1993) (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"). For this reason, it is essential that
trial judges who recite allegations explain their significance
to the disposition of the case. Here, the department urged us
to affirm even assuming the judge meant to rely on the
allegations, because of the sufficiency of the other evidence in
the record to support termination. But it is for the trial
judge, not us, to determine in the first instance whether
unfitness has been proven by clear and convincing evidence, and
whether termination of parental rights is in the best interests
of the children. If a judge's conclusion rests on an improper
factor, the judgment must be vacated and the case remanded for
reconsideration without use of that factor. Cf. Commonwealth v.
Arroyo, 451 Mass. 1010, 1011-1012 (2008).
To be sure, our courts have held that where a decision
terminating parental rights contains a small number of minor
factual errors, we may nonetheless affirm the decree 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,
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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 "[b]ecause they relate only marginally, if at all, to
the judge's ultimate conclusion of unfitness, [thus] we consider
them harmless"). But given the prominence of the alleged sexual
abuse in the judge's decision, that approach would not have been
appropriate here. Consequently, we remanded the case to the
trial judge for clarification of the basis for his
determination. See Adoption of Eden, 87 Mass. App. Ct. at 1109.
3. The judge's supplemental findings of fact and
conclusions of law. The judge promptly provided us with
supplemental findings of fact and conclusions of law. In the
findings of fact he reported that he "did not hear sufficient
evidence to make a determination by a preponderance of the
evidence that the sexual abuse by Father had taken place," and
that he "ma[de] no finding as to the truth of the allegations of
sexual abuse by Father." He made clear, however, that in his
initial decision he "did not rely on the sexual abuse
allegations."
Rather, he placed "substantial weight on the inappropriate
and troubling way in which . . . Father . . . chose to deal with
those allegations." "[R]ather than work with the [department]
to obtain services to heal the obvious handicaps of his family,
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Father refused to accept services, made accusatory claims of
racial bias, and acted in a manner which further harmed his
children." He repeated some of the facts recited above
concerning domestic violence, and reiterated that the father,
like the mother, does not "seem[] to have any understanding of
the emotional needs of [Eden] and the serious medical needs of
[Sam] and [Mark]. In the nearly four years during which this
family has been involved with the [department], Father has shown
no insight, made little or no progress and has made no attempt
at cooperation." He concluded that "Father has grievous
shortcomings that ha[ve] put the Subject Children at risk."
In light of the judge's clarification, we see no error in
the decrees terminating the parental rights of the father. None
of the facts found were clearly in error, and, taken together,
they support by clear and convincing evidence his determinations
both of unfitness and that termination is in the best interests
of the children.
Decrees affirmed.