Opinion
12-P-481
12-31-2012
CARE AND PROTECTION OF PATIENCE (No. 2).
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
On June 3, 2010, the mother and her boyfriend brought her five week old child to Lawrence General Hospital. The child had multiple, unexplained bone fractures. The mother blamed her sister who had cared for the child for about one hour earlier that day. A report under G. L. c. 119, § 51A, (§ 51A report) was filed. The child was transferred to Children's Hospital. A further examination revealed twenty bone fractures throughout her body which were believed to have been inflicted at different times and a brain injury (subdural hematoma) which the doctors determined were consistent with abuse. As a result, a second § 51A report was filed followed by an investigation by the Department of Children and Families (DCF). Initial statements made by the mother attributed the injuries primarily to maneuvers by her boyfriend to expel gas from the child. Initial statements by the boyfriend were that he may have been too rough with the child. DCF brought this care and protection action, as a result of which the mother was found unfit, and custody of the child was awarded to the father. The mother appeals. We affirm. 1. Jurisdiction. The mother's argument that the Juvenile Court sitting in Lawrence lacked jurisdiction over the matter fails because Massachusetts has jurisdiction over a child who is within its borders at the time an emergency care and protection petition is filed under G. L. c. 119, § 24. See Adoption of Peggy, 436 Mass. 690, 697-698 (2002). The child was treated at Massachusetts hospitals in June, 2010, and, as a result, health care professionals followed their statutorily mandated obligation to report what they reasonably believed and what the medical evidence suggested was abuse.
The mother's appeal focuses on the determination of her unfitness; she does not challenge the award of custody to the father in any other respect.
2. Unfitness. The 'first and paramount duty of the courts' is to protect the welfare of the Commonwealth's children. Petition of the Dept. of Social Servs. to Dispense With Consent, 389 Mass. 793, 799 (1983). There is ample evidence in this record (discussed in more detail below) to support the judge's subsidiary findings of fact. Even if other and contrary findings might have been made, we are not permitted to reject the judge's findings that are supported by the evidence. See Gallagher v. Taylor, 26 Mass. App. Ct. 876, 880-881 (1989). The evidence also supports his conclusion that based on the standard of clear and convincing evidence the mother was unfit to parent the child. See Adoption of Anton, 72 Mass. App. Ct. 667, 672-673 (2008).
The mother insisted throughout the proceedings that her child's injuries were caused by a bone deficiency. Her position on appeal is that the judge erred in finding that they were due to abuse by her boyfriend. The judge's findings relating to inflicted injuries is supported by the medical testimony of Dr. Celeste Wilson and Dr. Paul Kleinman, along with ample documentation, which the judge credited, and the reasonable inferences which he drew from the evidence. The mother's boyfriend admitted mishandling of the child, among other things, by 'using her like a guitar' whereby 'her head came crashing down,' and 'pushing [her] too hard' while performing gas-releasing maneuvers to the point of breaking her ribs. He also said he 'did not trust himself' and had mental issues. Even if the child suffered from a bone deficiency, the judge was entitled to credit expert medical testimony that it could not have caused all of the child's injuries. Moreover, and tellingly, the child's injuries did not recur once the child was taken away from the mother's care.
The expert medical testimony in this case is fairly synopsized in the brief submitted by DCF at 37-41.
Evidence further showed that the mother believed that her boyfriend had done nothing wrong and she planned to continue living with him if she regained custody of the child. Given the child's serious injuries, the mother's attitude of denial of abuse, and her willingness to continue to expose the child to the abuser, the judge was warranted in concluding that by a standard of clear and convincing evidence she was unfit to parent the child.
3. Other claims. A. Due process. The mother asserts that her right to a fair trial by an impartial fact finder was compromised because following the seventy-two hour hearing the judge expressed the view that the child had suffered inflicted injuries. As a result, she contends that the judge's later findings and rulings were the product of confirmation bias. The judge's observation that 'somebody beat this child' was warranted as a result of the testimony by Dr. Wilson at the temporary hearing that the unexplained presence of nearly two dozen fractures and the subdural hematoma was compelling evidence that the child had suffered nonaccidental trauma. The remainder of the mother's specific claims in this regard constitute dissatisfaction with the credibility assessments made by the judge. For example, the mother claims the judge was unfairly biased because he credited some but not other aspects of the testimony given by Dr. Wilson and Dr. Kleinman who were called by DCF and whose conclusions were that the child had suffered inflicted injuries. The mother selects features of their testimony which, if believed, would buttress her view that the child's injuries were not inflicted. The mother misunderstands the role of the judge; assessing credibility does not require the judge to credit or discredit the testimony of an expert witness in its entirety. See Charara v. Yatim, 78 Mass. App. Ct. 325, 334 (2010). The judge's findings represent factual determinations based on his assessment of the weight of the evidence. See Adoption of Quentin, 424 Mass. 882, 886 (1997).
It should be noted that the judge found each of the mother's four expert medical witnesses to be qualified to give opinions in one or more medical specialties, and specifically stated in his findings that he 'carefully considered' their opinions but rejected them because the factual assumptions on which they were based were not the facts he found.
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It was permissible for the judge, who observed and heard the witnesses testify, to reject the assessment offered by Dr. Moe regarding the likelihood that the child suffered from vitamin D deficiency that could have increased risk of non-traumatic fractures. Dr. Moe did not examine the child nor review her X-rays, and his report does not contain an affirmative diagnosis, stating only that such condition was 'most likely.' The judge had the right to discredit Dr. Moe's hypothesis. See, e.g., Commonwealth v. Brown, 449 Mass. 747, 761 (2007).
B. Hearsay. The mother challenges the judge's decision to admit her boyfriend's electronic mail (e-mail) on grounds that it was a declaration against interest. The mother does not dispute that her boyfriend was not a party and was unavailable to testify as a witness. The contention that her boyfriend was unaware that his statements were contrary to his interest when made is belied by the evidence. Any reasonable person would have understood that some of the statements would have exposed the maker to criminal liability. See Mass.G.Evid. § 804(3) (2012 ed.). The mother also argues that a hearsay statement by her boyfriend's psychologist which was part of that e-mail was improperly admitted. The statement read: 'The psychologist believes, in his professional opinion, that I have a moderate to high risk of endangering a child due to my disorder [OCD]. He said he does not find any malice in my actions . . . .' The judge admitted it as a statement against interest over the mother's objection. The fact that the e-mail contained second-level hearsay -- the psychologist's statement -- was overlooked. A judge in a care and protection proceeding may not rely on facts that are not properly admitted in evidence. Care & Protection of Zita, 455 Mass. 272, 280 (2009). However, any error in admitting the layered hearsay was not prejudicial: even without the statement, there was ample evidence of her boyfriend's abuse of the child, available through other admissible sources (the § 51A report, and the testimony of Dr. Wilson, the DCF investigator, and the mother).
C. Exclusion of evidence. The mother argues that the judge abused his discretion in excluding the proposed testimony of fourteen witnesses who would testify that the child appeared well on an 'every-day basis.' She argues that this testimony would have supported Dr. Hyman's opinion that most of the child's injuries were clinically silent (justifying the mother's failure to act in regard to abuse). Apart from the fact that there was ample evidence in the record from medical experts that the child's numerous fractures were not readily visible, that the absence of bruising was not clinically significant, and that she was probably asymptomatic, this evidence had no bearing on the judge's ultimate finding of unfitness, and thus was properly excluded as irrelevant. See Mass.G.Evid. §§ 401 & 402.
D. Evidence disregarded. The mother also contends that the judge erred in disregarding the investigator's report. However, the mother overlooks the scope of the statutory authority for the admission of such reports, which is confined to 'the facts relating to the welfare of the child.' G. L. c. 119, § 21A, inserted by St. 2008, c. 76, § 83. Here, the judge properly disregarded most of the report because it was predominantly the product of opinions based on assessments of credibility and not a statement of facts. See Care & Protection of Rebecca, 419 Mass. 67, 83 (1994).
E. Limitation on cross-examination. The judge did not abuse his discretion by limiting the mother's cross-examination of Dr. Wilson and Dr. Kleinman. The mother extensively cross-examined both experts. In one instance, the judge appropriately limited cross-examination on a matter which was beyond Dr. Wilson's range of expertise. See Commonwealth v. Frangipane, 433 Mass. 527, 535 (2001). In another instance, the judge acted within his discretion to curtail further cross-examination because the subject (alternative explanations for the subdural hematoma) had been extensively covered. See Commonwealth v. Perez, 444 Mass. 143, 149-151 (2005).
4. Name change. The standard that governs a motion to change the surname of a child is whether it will advance the best interests of the child. Petition of Two Minors for Change of Name, 65 Mass. App. Ct. 850, 856 (2006). See G. L. c. 210, §§ 1 & 2. The factors are set forth in Jones v. Roe, 33 Mass. App. Ct. 660, 664 (1992). Here, the child was not yet one year old, had no awareness of her given surname, and was thriving in the care of her father. In view of this and the other findings by the judge, he did not abuse his discretion in concluding that it was in the best interests of the child to change her surname.
See Richards v. Mason, 54 Mass. App. Ct. 568, 570 (2002).
Judgments affirmed.
By the Court (Grasso, Fecteau & Agnes, JJ.),