Adoption of Iris

• Decision Date: 07 July 1997
• Docket Number: No. 96-P-1138,96-P-1138
• Citation: 680 N.E.2d 1188,43 Mass.App.Ct. 95
• Parties: ADOPTION OF IRIS. 1
• Court: Appeals Court of Massachusetts

Page 1188

680 N.E.2d 1188

43 Mass.App.Ct. 95

ADOPTION OF IRIS. ¹

No. 96-P-1138.

Appeals Court of Massachusetts,

Suffolk.

Argued March 10, 1997.

Decided July 7, 1997.

Deborah Sirotkin Butler, Arlington, for the parents.

Christopher E. Lee for Department of Social Services.

Thomas J. Brady, Cambridge, for the child.

Before PERRETTA, LAURENCE and LENK, JJ.

LENK, Justice.

The parents of Iris appeal from a 1996 judgment of the Boston Juvenile Court adjudicating their young daughter as in need of care and protection, dispensing with their need to consent to her adoption, and committing Iris to the custody of the Department of Social Services (department) until the adoption plan for her can be effectuated. The proceedings below, as well as the department's involvement with Iris and her parents, all result from a single unexplained head injury which Iris sustained in the summer of 1993 when she was barely one month old.

The parents complain that the burden of proof at trial was unconstitutionally shifted from the department to them, i.e., instead of the department being made to prove parental unfitness by clear and convincing evidence, they were instead required to prove their fitness as parents by explaining the genesis of Iris's injury. They also argue that the evidence presented by the department did not prove them unfit in the requisite clear and convincing manner and that certain inadmissible and prejudicial hearsay evidence, particularly in the medical records, was improperly admitted against them over their repeated objection. We conclude that neither the inadequate evidence offered by the department nor the judge's subsidiary findings of fact are sufficient to support, by clear and convincing evidence, "the grave conclusion of unfitness." Adoption of Katharine 42 Mass.App.Ct. 25, 27, 674 N.E.2d 256 (1997).

Background. Iris suffered bilateral skull fractures with bleeding into the brain, leaving her permanently damaged. All concerned agree that the cause was trauma. What is unclear, however, is the nature of the trauma, i.e., whether it was inflicted abuse or accidental injury, who caused the injury, and who was present when it occurred. Iris's parents have consistently maintained that they do not know how this injury happened.

For almost two years after Iris was discharged from the hospital in the department's temporary custody directly into a specialized foster home, where she still remains, the department's goal was to reunite the family. Toward that end, Iris's parents, who had not had prior involvement with the department, complied fully with the department's many service plan requirements and displayed generally exemplary parenting behavior. Notwithstanding this and despite internal departmental differences of opinion on the matter, the department's goal for Iris changed in mid-1995 from family reunification to adoption. The goal change apparently occurred solely because, in the two years preceding it, the department had not been able to learn from Iris's parents the circumstances of her head injury. The department ultimately embraced the view that Iris's parents are unfit because (a) they inflicted or otherwise caused the injury themselves but will not admit it; (b) they know but will not disclose who caused the injury; or (c) they should know, were they non-negligent parents, who caused the injury, but do not. The department concluded that, absent suitable parental explanation of the injury's genesis, Iris could not be assured of protection in the home of such parents but would instead be at great risk of harm if returned to them.

After three days of trial in October, 1995, the judge on May 21, 1996, issued his Findings of Fact, Conclusions of Law, Ultimate Findings, and Order. He found Iris's parents to be currently unfit and lacking in the capacity, ability and readiness to assume parental responsibility. This ultimate finding rests upon thirty-one subsidiary findings of fact, as well as several other fact findings intermingled with conclusions of law. Several of the subsidiary findings are of particular importance: (a) that the parents were either the "causal agent" of Iris's injuries or were negligent in leaving her with inappropriate caretakers who caused the injury; (b) that Iris was "severely physically abused"; and (c) that the parents know but refuse to explain how Iris sustained the injuries.

Insofar as pertinent to these key determinations, we recite other findings made by the judge. Julia, born on October 7, 1973, and Paul, born on March 27, 1964, are the unmarried biological parents of Iris, their only child, born on June 30, 1993. Neither parent has a criminal record. Each was previously married and divorced. The father and his former wife have one child together, a son born with spina bifida, whom the father visits regularly and supports. The father was unemployed at the time of trial, having previously been laid off from his job. ²

In the three weeks after Iris's birth, her mother and father took her to physicians on three occasions to be examined for various reasons; she was found to be healthy. ³ Late in the afternoon on Sunday, August 1, 1993, the mother called Iris's pediatrician telling him of Iris's glassy, tired looking eyes and of her being feverish and fussier than usual. On his advice, the mother and father brought Iris to a local hospital around 5 P.M. A spinal tap was performed, revealing blood, and causing the physician to suspect trauma. Iris was transferred to Boston Children's Hospital (BCH) for further evaluation about 8 P.M. There were no visible or palpable signs or marks of trauma on Iris's scalp. When Iris arrived at BCH, around 9:50 P.M., she was having seizures and was placed on a respirator and admitted to the intensive care unit. A CT scan revealed left subdural and right posterior hemorrhage within the brain substance, and a left parietal skull fracture.

According to notes he made on Iris's hospital chart, Dr. Eli Newberger of BCH's Child Protection Services reviewed Iris's record and examined her at 12:30 P.M. on Monday afternoon, August 2, 1993. The notes, set out in full in the margin, ⁴ do not indicate when the head injury likely occurred, except to say "over an interval of days," nor do they indicate that the head injury was likely inflicted rather than accidental. The judge, however, apparently relying instead upon the department's 51A report taken from a social worker at BCH and upon the court investigator's report summarizing that 51A report, recited that the "abrasion on the stomach was determined [by Dr. Newberger] to be about seventy-two hours old and all the other injuries were determined to be under thirty-six hours old. Dr. Newberger determined that the skull fracture was certainly caused by abuse. With the abrasion on the stomach, Dr. Newberger determined that it could not have been caused by the child scratching herself." (Emphasis supplied.)

Again in apparent reliance upon a portion of the 51A and investigator's reports, the judge stated that another BCH physician, Dr. Churchwell, had at some point examined Iris and concluded that Iris's head injury was due to a "significant blow to her head" and that the "skull fracture occurred within twenty-four to forty-eight hours of Iris being brought to the hospital." The judge did not clarify whether the hospital in question was BCH or the local hospital to which Iris's parents first brought her. Also, the very next sentence of the same 51A report on which the judge relied states that on August 3, 1993, Dr. Churchwell believed that the fracture had occurred within the past 72 hours. The judge made no specific finding as to when the injury occurred.

The judge found that BCH staff had concluded that the only way Iris's head injury, which was not due to brittle bone disease, could have occurred was for Iris to have experienced a sharp blow to her head, such as being hit with or against something or having a fall. He found that Iris's parents told BCH staffers and the department's 51A investigator that they were Iris's only caretakers and did not know how the injury occurred. He found that the parents' explanation of how Iris might have been injured while having her photograph taken at Wal-Mart on August 1 was not consistent with Iris's serious injuries, although he does not discuss why he finds the explanation unsatisfactory. The judge found that although Iris's parents had permission to remain overnight at BCH after having visited with her for most of the day on Monday, August 2, 1993, they did not stay over. The judge also recited summary portions of the psychological evaluation reports done of the parents, but he did not clarify what findings he made as a result of these reports, nor did he address the recommendation made in the psychologist's report that Iris be returned to the home of her parents with a high level of precautions being taken by the department. ⁵

The judge found that the department had worked with Iris's parents, offered them a number of services and provided them and family members visitation with Iris. He described Iris's present health and prognosis ⁶ and determined that she requires "a structured and secure environment where she will receive appropriate parenting and supervision." No findings were made as to any specific special needs or required services.

On the basis of the foregoing, the judge concluded that Iris received injuries while in the care and custody of her parents, that she was severely physically abused, that her parents either inflicted the injuries or know who did, that they refuse to disclose this information, that their refusal to explain how Iris was injured creates a high risk that she could receive further injuries or abuse if returned to her parents, and that Iris's parents are, accordingly, currently unfit to be her parents.

Discussion. In making these regrettably sparse findings, the judge relied almost exclusively upon the...