Opinion
20-P-1314
10-20-2021
ADOPTION OF VIOLET (and a companion case[1])
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
The Department of Children and Families (department) filed this care and protection petition in September of 2016 and was granted temporary custody of the mother's two daughters, Violet and Lisa. After a 2019 trial, a Juvenile Court judge found the mother unfit and terminated her parental rights, primarily based on her inability to protect the girls from exposure to domestic violence between herself and the father. On appeal, the mother argues that the judge made various evidentiary errors and that certain subsidiary findings of fact were clearly erroneous. We affirm.
The father's parental rights were also terminated; he did not appeal.
Discussion.
It was the department's burden to prove by clear and convincing evidence that the mother was currently unfit to parent each of the children, and that dispensing with parental consent was in their best interests. See Adoption of Gregory, 434 Mass. 117, 126 (2001). "Subsidiary findings must be proved by a fair preponderance of the evidence." Adoption of Helen, 429 Mass. 856, 859 (1999). "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).
1. De novo review of certain findings.
The mother begins by asserting that, because 151 of the judge's 179 subsidiary findings of fact were based solely on documentary evidence, we should review those 151 findings without any deference to the judge. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018) (findings based solely on documentary evidence are reviewed without deference). The mother, however, does not assert that all 151 of those findings are clearly erroneous or otherwise defective. Nor does she attempt to explain how those 151 findings may have been influenced by other evidence before the judge, including the testimony of the mother. See Adoption of Inez, 428 Mass. 717, 721 (1999). We decline to undertake a de novo review of any findings that the mother does not specifically challenge. Those findings that she does specifically challenge are addressed infra.
2. Evidentiary errors.
The mother asserts that much of the evidence the judge considered was inadmissible hearsay. The mother acknowledges, however, that she did not object to any of that evidence, on hearsay or other grounds. Instead, she asks us to review the asserted evidentiary errors to determine whether they created a substantial risk of a miscarriage of justice. The only case she cites for that proposition is Commonwealth v. Whelton, 428 Mass. 24, 26 (1998). But Whelton was a criminal case, and the mother does not point to, nor have we been able to locate, any decision suggesting that unpreserved errors in a civil child welfare case may be reviewed using the substantial risk standard. Rather, evidentiary objections not raised in the trial court are waived on appeal. See Adoption of Bea, 97 Mass.App.Ct. 416, 424 (2020), citing Adoption of Kimberly, 414 Mass. 526, 534-535 (1993). We therefore decline to address the mother's arguments about the admissibility of hearsay evidence in this civil child welfare case. See generally Mass. G. Evid. § 1115 (2021).
The mother also argues that certain out-of-court statements of the girls concerning sexual matters were admitted in violation of G. L. c. 233, § 82, and relied upon by the judge. That statute provides in pertinent part that "[t]he out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator shall be admissible as substantive evidence," provided certain conditions are met. G. L. c. 233, § 82 (a). But the mother made no objection at trial based on § 82; her objection on appeal comes too late. Moreover, the mother points to no statements by either girl "describing any act of sexual contact performed on or with" the girl herself; rather, the mother points to statements indicating that the girls witnessed others engaging in sexual behavior or were exposed by others to sexually oriented materials. Section 82 thus does not apply here.
Finding of fact 150 refers to the girls having disclosed "physical and sexual abuse they had been subjected to while in the care of" the mother and the father. But the social worker testimony that the judge cited as the basis for this finding does not refer to any such disclosures; it refers only to the girls' engaging in sexualized behaviors. The finding of sexual abuse of the girls was clearly erroneous. The judge's conclusions of law, however, refer in the alternative to the girls having been "subjected to sexual abuse or witnessed inappropriate sexual conduct" (emphasis added). The mother does not argue that the finding of the girls' having witnessed inappropriate sexual conduct is clearly erroneous. We thus conclude that the erroneous portion of finding 150 had no material impact on the judge's decision.
3. Erroneous subsidiary findings.
We address seriatim the mother's arguments that certain subsidiary findings were clearly erroneous. "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Marlow v. New Bedford, 369 Mass. 501, 508 (1976), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). See Custody of Eleanor, 414 Mass. 795, 799 (1993).
The mother challenges finding 2 insofar as it states: "As of April 1, 2017, Violet exhibited emotional dysregulation while transitioning between visits." This finding was supported by a department report to the court dated April 21, 2017, quoted in the margin. The inference that the emotional dysregulation occurred while transitioning between visits was a fair one.
The report stated in part: "Since being in placement the children have gone through various transitional struggles. Violet tends to experience more emotional dysregulation than Lisa. Violet's behaviors present as clinginess, crying, begging to go home or begging not to leave; also begging family members not to leave."
The mother challenges finding 7 insofar as it states that Violet's therapist reported that Violet "exhibited 'textbook' signatures of [p]ost-[t]raumatic [s]tress [d]isorder." This finding was supported by a department report to the court dated November 6, 2017, in which the therapist was quoted as saying that Violet presented "as 'textbook' PTSD" and the therapist went on to describe the particular observations of Violet's behavior (hyper-vigilance, need for control, labile mood) that supported that statement.
The mother challenges finding 56 insofar as it states that the mother took over a week to report to the department the October 2, 2018 arrest of the father in her home, discussed infra. This finding was supported by a department report to the court dated January 23, 2019, in which a social worker stated that the mother had sent her a text message on October 5, 2018, to say that "there had been an incident in her home with [the father]," and that the mother disclosed the details of the incident -- involving serious criminal activity -- to the social worker at a department-initiated meeting on October 11, 2018. The mother cites no evidence that she disclosed the nature of the incident to the department at any time before October 11, more than a week later.
The mother challenges finding 70 insofar as it states that, as of January 10, 2019, the mother had missed "several" therapy appointments. This finding was supported by the department's report to the court dated January 23, 2019, in which the social worker reported that on January 10, 2019, the therapist had stated the mother had "missed a few sessions." The minor variation between the word "several" and the phrase "a few" does not render the finding clearly erroneous.
The mother challenges finding 76 insofar as it states that the mother "has filed multiple restraining orders against [the father] pursuant to G. L. c. 209A." The mother suggests that she had obtained only two such orders, and that the word "multiple" was an exaggeration. We note that one of those two orders was extended twice by orders of different judges. Further, the remainder of finding 76 expressly refers only to the two restraining orders at issue. The finding, taken as a whole, was not clearly erroneous.
The mother challenges finding 84 insofar as it states that the mother, after completing a domestic violence program in the spring of 2016, moved in with the father. As the department concedes, this finding was clearly erroneous; the evidence showed that the mother moved in with her own father at that time. We do not view this erroneous finding as undermining the judge's ultimate decision, however, because, despite continuing domestic violence, the mother continued to interact with the father long after the spring of 2016.
In that vein, and finally, the mother challenges the finding, set forth in the judge's conclusions of law numbered 4 and 7, that the mother was still "together" with or "in contact" with the father as recently as the fall of 2018. This finding was based on evidence of the incident of October 2, 2018, in which the father came into the mother's apartment after threatening a neighbor with a firearm. After the father was arrested, police obtained a search warrant for the mother's apartment and located a loaded, unsecured, unlicensed firearm hidden in the bed in the girls' bedroom. The police also recovered crack cocaine, $8,810 in cash, and drug distribution paraphernalia.
Although the mother testified that the father had "barged" into her apartment unexpectedly, the judge expressly declined to credit the mother's version of the relevant events, including to whom she reported the incident and why. This credibility determination was within the judge's discretion. "It [was] within the judge's discretion to evaluate the credibility of witnesses and to make [her] findings of fact accordingly. . . . [She] was not obliged to believe the mother's testimony or that of any other witness." Care & Protection of Three Minors, 392 Mass. 704, 711 (1984). See Prenaveau v. Prenaveau, 81 Mass.App.Ct. 479, 496 (2012). The judge could reasonably infer that the mother was in voluntary contact with the father at the time of the incident.
Despite this contact, the mother insisted at trial that she had done nothing between 2016 and the time of trial that would put the girls at any risk. The judge could therefore reasonably conclude that the mother had not sufficiently benefited from the domestic violence services offered to her; that if she were reunited with the girls, she would be unable to protect them from exposure to domestic violence and other safety risks at the hands of the father; and that termination of the mother's parental rights was warranted.
See Custody of Vaughn, 422 Mass. 590, 595 (1996) (noting that child who witnesses domestic violence "suffers a distinctly grievous kind of harm").
The judge's "properly supported findings" on those issues "were []sufficient to prove current parental unfitness by the proper legal standard." Custody of Eleanor, 414 Mass. at 802 n.12. See Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 664 (1986) (concluding that judge's "subsidiary findings fully support his ultimate conclusion" of unfitness). The mother having shown no material errors or any abuse of discretion in the judge's decision, the termination of the mother's rights must be affirmed.
Decrees affirmed.
The panelists are listed in order of seniority.