Adoption of Kimberly

• Decision Date: 09 March 1993
• Citation: 414 Mass. 526,609 N.E.2d 73
• Parties: ADOPTION OF KIMBERLY (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 73

609 N.E.2d 73

414 Mass. 526

ADOPTION OF KIMBERLY (and a companion case ¹).

Supreme Judicial Court of Massachusetts Hampden.

Argued Nov. 4, 1992.

Decided March 9, 1993.

Robin L. Stolk, Leeds, for the mother.

Elizabeth A. Sickelco, Springfield, for the minors.

David B. Perry, Boston, for Dept. of Social Services.

Before WILKINS, NOLAN, LYNCH and GREANEY, JJ.

LYNCH, Justice.

The mother of two minor children appeals from judgments of the Probate and Family Court, dispensing with the need for her consent to the adoption of her daughters, Kimberly and Joyce, pursuant to G.L. c. 210, § 3 (1990 ed.). She argues that (1) the judge's findings regarding current parental unfitness and the best interests of the children were not supported by clear and convincing evidence; (2) the failure of the Department of Social Services (department) to provide timely and appropriate services to prevent the dissolution of the family requires reversal of the judge's decision to terminate parental rights; and (3) certain evidentiary rulings constituted reversible error. We transferred the case here on our own motion, and we now affirm.

The children at issue, Kimberly and Joyce, have the same natural mother but different fathers. ² The mother also has another child, Lucy, by the father of Joyce (to whom we shall refer as "Bob"). ³ Since November 1, 1988, Kimberly and Joyce have lived with Kimberly's paternal grandparents who are the prospective adoptive parents. ⁴ On January 24, 1989, a District Court judge adjudicated Kimberly and Joyce in need of care and protection pursuant to a petition filed by the department. See G.L. c. 119, § 24 (1990 ed.). On October 5, 1989, the department filed the instant petitions which, while not consolidated, were heard together. The children's natural fathers did not contest the petitions.

After a three-day trial, the judge found that both girls had been victims of sexual and emotional abuse and neglect and allowed the department's petitions. The judge's order allowed the children to be adopted by the grandparents and granted the mother visitation rights subject to certain conditions. ⁵

1. The mother argues that the evidence relied on by the judge in concluding that she was currently unfit to parent the children was stale and, therefore, was not clear and convincing. She admits that the record supports the judge's findings as to her life-style up to the time that the children were removed from her care, but claims that she has since improved and currently has the ability to assume parental responsibility for the children. The mother also argues that the judge's conclusion that the best interests of the children are served by terminating parental rights is also not supported by clear and convincing evidence. Since parental fitness and the best interests of the child are interrelated inquiries, we address both arguments together. Adoption of Carlos, 413 Mass. 339, 348, 596 N.E.2d 1383 (1992), citing Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641, 328 N.E.2d 854 (1975).

In order to remove children permanently from a natural parent and to dispense with parental consent to adoption under G.L. c. 210, § 3, the judge must find, by clear and convincing evidence, that the parent is currently unfit to further the welfare and best interests of the child. Care & Protection of Martha, 407 Mass. 319, 327, 553 N.E.2d 902 (1990), and cases cited. However, a judge can "rely upon prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining current unfitness." Adoption of Diane, 400 Mass. 196, 204, 508 N.E.2d 837 (1987). The judge's findings must be left undisturbed absent a showing that they are clearly erroneous. Care & Protection of Martha, supra.

Many of the judge's findings concerned the mother's life-style prior to when Kimberly and Joyce were removed from her care in 1988. ⁶ The judge also made findings that the mother may have been improving her ability to care for the children. ⁷ However, the judge concluded that the mother was unfit to parent her children specifically due to "her continuing and problematic relationship with [Bob, the father of Joyce and Lucy]." The judge found that "[b]oth girls [Kimberly and Joyce] were sexually abused by [Bob] by direct and inappropriate physical contact. This is clear from the Court's own observations of [Kimberly], as well as from the testimony and exhibits.... One of the many results of this abuse is that both girls are in fear of being in [Bob's] presence, alone or with others, and even seeing possessions associated with [Bob] cause them great anxiety." On the testimony of the children's therapist, the judge also found that, "[u]nder no circumstances should [Joyce and Kimberly] be in the presence of [Bob], or in a place where he may leave his clothing or personal effects." Further, while the judge was unable to find that the mother lived with Bob at the time of the trial, he did find that Bob did not have a permanent address, worked near the mother's residence, visited her residence daily to visit his child Lucy, left many possessions there, and frequently showered, changed clothes, and ate there. In addition, on the basis of a psychological assessment, the judge found that the mother "placed her own needs to continue involvement with [Bob] before the needs of her children," that "the mother was very slow to acknowledge and deal with the impact of the sexual abuse," and that "[t]he mother has a history of having failed to protect these two minor children from abuse and neglect and in fact has contributed to some of what they have suffered." ⁸ Thus, the judge concluded, "[g]iven that on-going contact and relationship, there is no way that the girls could be returned to the mother's care as they would be continually at risk of contact with [Bob]." ⁹

In regard to the children, the judge found that Kimberly "needs consistently stable care with a regular routine, warm, nurturing care where she feels loved and safe with no threat of danger." As to Joyce, the judge found that her "parenting needs are the same as those of [Kimberly] plus she needs a little more understanding for her regression: she needs tolerance and patience." The judge also found that both girls were suffering from posttraumatic stress disorder as a result of the sexual abuse, but that their behavior had improved since living with the grandparents. Thus, the judge concluded that the department's proposed plans for the children, which called for the grandparents to adopt the children, were in the best interests of the children. The judge granted the mother visitation rights, but stated that the children should not be exposed in any way to Bob or his effects, and that the visits should be at the discretion of the grandparents. ¹⁰ Because of the evidence of Bob's abuse, the mother's continuing relationship with Bob, and the children's improvement since living with the grandparents, the judge's findings and disposition of these cases were not clearly erroneous. ¹¹

2. The mother next contends that the judge's finding that the children "were sexually abused by [Bob] by direct and inappropriate physical contact" was not supported by clear and convincing evidence. She also argues that the finding is clearly erroneous because it conflicts with a finding adopted by the judge that "[Bob] sexually abused [Kimberly] and may have also sexually abused [Joyce]."

We do not reach the mother's argument that the evidence of abuse must be shown by clear and convincing evidence because the ample evidence of abuse clearly met that standard. The mother testified that she believed Bob had abused both of her daughters. One expert testified that she had no question the sexual abuse had occurred. In a report admitted in evidence, another expert who evaluated the children stated that "these two girls give a very definite history of inappropriate sexual activity by [Bob]. This is given against a backdrop that is well defined by everyone as high risk given the substance abuse that is present in the home and the presence of x-rated movies." The grandmother testified that Joyce and Kimberly demonstrated inappropriate sexual activity at home with each other and with dolls. Another witness testified that the children demonstrated similar activity in therapy. This evidence provides a clear and convincing basis for the judge's finding that both girls were abused. ¹² Care & Protection of Martha, supra 407 Mass. at 327, 553 N.E.2d 902.

3. Pursuant to G.L. c. 233, § 82 (1990 ed.), ¹³ the department filed a motion to admit six out-of-court statements of Joyce at trial. ¹⁴ The mother opposed the motion. After a hearing, the judge found, as required by the statute, that Joyce was unavailable to testify and that her statements met the statute's requirement of reliability. ¹⁵ The statements were later admitted in evidence. The mother now argues that admission of the statements was error.

The mother did not object to the introduction of the statements at trial. However, she asserts that, when the judge at the preliminary hearing stated that having children testify was his last preference, her counsel "understandably, fell silent." See Adoption of Seth, 29 Mass.App.Ct. 343, 350, 560 N.E.2d 708 (1990). As such, she argues that her counsel's statement at the preliminary hearing, that he preferred that the children testify, should be interpreted as a continuing objection to the admission of Joyce's statements at trial. We disagree. A quick review of the record shows that the judge was not inappropriately pressuring counsel at the hearing or influencing the trial. ¹⁶ See Adoption of Seth, supra at 351, 560 N.E.2d 708. Moreover, the judge gave counsel every opportunity not only to object at trial, but to argue that the department had not even offered the statements as part of its case. ¹⁷ Counsel, however, failed to...