This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And 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
A mother appeals from Juvenile Court decrees terminating her parental rights to her three children., We affirm.
On August 29, 2012, the Department of Children and Families (department) removed the children from their mother's care; the department received temporary custody after the mother waived her right to a hearing. Faith and Erica were placed together in a foster home; Scott was placed in a separate foster home.
In September, 2012, Faith and Erica had their first visit with their mother after they were removed from her care. At the end of the visit, they did not want to leave her and became difficult to control. Afterwards, both girls were admitted to the Italian Home for Children (Italian Home) and a crisis team was called to evaluate them. The girls remained at the Italian Home until November, 2012, and thereafter they were placed in a kinship foster home with a paternal aunt. They have remained in this prospective preadoptive home since that time.
When Scott initially arrived in foster care in August, 2012, he was described as " dirty" and behind on his medical immunizations. On March 25, 2013, he was placed in a kinship foster home with his paternal grandmother, a prospective preadoptive placement. At the time of trial, he was attending daycare and doing well.
The mother first argues that the judge's subsidiary
findings rely on erroneous information and " one-sided fact finding." After
careful review, we are satisfied that the three challenged subsidiary findings
were not key findings and appear not to have had an impact on the judge's
ultimate conclusion of unfitness.
The first finding at issue, finding 29, refers to a 2008 child abuse and neglect report made pursuant to G. L. c. 119, § 51A (51A report), admitted at trial as exhibit nine, which stated that the mother's apartment was " infested with gnats and had a deplorable food odor. There was trash, rotted food and soiled diapers everywhere." The report was based on a police report filed by a Fall River police officer, a mandated reporter. A 51A report is admissible to set the stage in order to explain how the department became involved with the family, and, therefore, the mother's historical conduct and pattern of past neglect appropriately can be considered on the issue of her current fitness. See Adoption of Irene, 54 Mass.App.Ct. 613, 620, 767 N.E.2d 91 (2002). See also Adoption of George, 27 Mass.App.Ct. 265, 268, 537 N.E.2d 1251 (1989). In the present case, the judge noted that, between March, 2008, and October, 2012, eleven 51A reports were filed on behalf of the children.
In addition, it does not appear that the mother objected to the admission of this specific 51A report, nor did she make any effort to excise from the report any of the hearsay statements she now complains about. As a result, she is precluded from asserting here that the 51A report was admitted improperly in evidence, or that the judge erred in relying on the statements contained in that report. See Adoption of Sean, 36 Mass.App.Ct. 261, 265, 630 N.E.2d 604 (1994).
The second contested finding, finding 192, states that the mother has lived in a one-bedroom apartment with Scott's father since January, 2013. In fact, the evidence shows that, at the time of trial, Scott's father and the mother lived in a two-bedroom apartment. The number of rooms is not the issue, however. The significant factor is the judge's underlying concern that the mother was living with the person who brutally assaulted her in front of the children, and that she persistently failed to acknowledge that he was, indeed, the cause of her physical injuries. The judge was permitted to conclude that the mother's steadfast refusal to acknowledge domestic abuse in her home contributed to her unfitness as a parent. See Custody of Vaughn, 422 Mass. 590, 595, 664 N.E.2d 434 (1996).
Third, finding 193, " Mother did not appear for the first or second day of trial" is wrong. According to both the docket sheet and the transcript, the mother was present for both trial days, although she arrived late on day two; she also testified. However, the judge referred to the mother's testimony in her findings, showing that the error in this finding was an oversight. In light of all of the evidence, we cannot say that it is material.
Unfitness and termination.
The mother also argues that, because several of the
judge's findings are erroneous, the remaining findings do not prove her
unfitness by clear and convincing evidence, and that termination of her ...