Custody of Eleanor

• Decision Date: 09 April 1993
• Citation: 414 Mass. 795,610 N.E.2d 938
• Parties: CUSTODY OF ELEANOR & another. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 938

610 N.E.2d 938

414 Mass. 795

CUSTODY OF ELEANOR & another. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Dec. 8, 1992.

Decided April 9, 1993.

Joseph T. Buckley, Jr., for the mother.

Kenneth J. King, for the minors.

Alexander G. Gray, Jr., Sp. Asst. Atty. Gen., for Dept. of Social Services.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

Here we are required to determine the proper standard of review for appellate courts in child custody cases. A judge in the Juvenile Court found two minor children, Eleanor and Carol, in need of care and protection and placed them in the permanent custody of the Department of Social Services (department). See G.L. c. 119, §§ 24 and 26 (1990 ed.). The Appeals Court reversed the judgment. Custody of Eleanor, 32 Mass.App.Ct. 668, 593 N.E.2d 253 (1992). We granted the department's application for further appellate review, and reverse the judgment of the Juvenile Court.

We summarize the relevant facts as found by the judge. On April 7, 1988, seven year old Eleanor was examined at the South Boston Health Center for a vaginal infection. During the examination, Eleanor's mother informed the attending physician that Eleanor had told her that the mother's boy friend, whom we shall call John Flanders, had "touched her down there." When questioned, Eleanor confirmed that Flanders had touched her vaginal area. Four days later, a report in accordance with G.L. c. 119, § 51A (1990 ed.) (51A report), was filed with the department alleging sexual abuse of Eleanor. Due to the nature of the allegations, Eleanor's three year old sister, Carol, was added to the investigation.

On April 18, 1988, the mother informed a Boston police sergeant that she did not want the district attorney's office to prosecute Flanders. ² On April 20, 1988, the allegations of sexual abuse were supported along with allegations of emotional neglect of both children by their mother. Eleanor later recanted her allegation. ³

On August 19, 1988, a second 51A report was filed alleging that the mother continued emotionally to neglect Eleanor and Carol by allowing them to remain alone and unsupervised with Flanders. Following these allegations, the mother and Eleanor participated in therapy at the South Boston Health Center and the mother was generally cooperative with the department. Her cooperation and participation in therapy ceased, however, on the release of Flanders from Bridgewater State Hospital. ⁴ Within the next year, several 51A reports alleging emotional neglect of both children were filed with the department, but went unsupported.

On December 9, 1989, the mother and Flanders were married. The department then initiated another 51A report alleging that: Flanders now had access to Eleanor and Carol; the mother and Eleanor had stopped therapy; the mother refused to acknowledge that Eleanor had been sexually abused; and the mother had failed to complete tasks outlined in a service plan that she had signed on October 25, 1989.

On January 22, 1990, the department filed the instant care and protection petition on behalf of Eleanor and Carol pursuant to G.L. c. 119, §§ 24 and 26. After a full hearing, the judge granted temporary custody of Eleanor and Carol to the department, ordered that they be placed in foster care, required that their visits with their mother be supervised, and ordered Flanders to have no contact with either child. The department placed both children in separate South Boston foster homes. In February, 1990, however, Eleanor was removed from her foster home at the request of her foster mother. Because the department was unable to find alternative foster placement in South Boston, the department placed Eleanor with her aunt and uncle in New Hampshire.

The judge found that Flanders had a history of mental illness and instability that required repeated psychiatric admissions. ⁵ In addition, a sexual offender evaluation of Flanders conducted by Dr. David Doolittle found that Flanders demonstrated characteristics in his history and psychological test findings associated with child sexual offenders. ⁶ Dr. Doolittle concluded, "The circumstances to [Flanders'] emotional adjustment as well as the characteristics outlined above suggest the need for considerable caution regarding his having unsupervised access to children at the present time." He recommended that Flanders not be granted unsupervised access to children residing in his home.

As of January, 1990, the mother had called a department social worker four times and indicated that she would obtain a divorce from Flanders. However, at the care and protection proceeding on July 23, 1990, she had not obtained one and she continued to live with Flanders. She also testified at the proceeding that nothing would ever convince her that Eleanor was sexually abused, and that Flanders is not a danger to her children.

The judge concluded that both Eleanor and Carol were in need of care and protection pursuant to G.L. c 119, §§ 24 and 26, and permanently committed them to the care of the department for placement in foster care. The Appeals Court reversed, stating that "the evidence presented a slender, and therefore insufficient, basis for a finding of the mother's unfitness." ⁷ Custody of Eleanor, supra at 670, 593 N.E.2d 253. We reach the same result as the Appeals Court, but by slightly different reasoning.

The judge's findings in a custody proceeding must be specific and detailed so as to demonstrate that close attention has been given the evidence and such findings must prove current parental unfitness clearly and convincingly. Care and Protection of Laura, 414 Mass. 788, 610 N.E.2d 934 (1993). Care & Protection of Martha, 407 Mass. 319, 327, 553 N.E.2d 902 (1990). Adoption of Frederick, 405 Mass. 1, 4-5, 537 N.E.2d 1208 (1989). Custody of Two Minors, 396 Mass. 610, 619, 487 N.E.2d 1358 (1986). The findings, however, must be left undisturbed absent a showing that they are clearly erroneous. Adoption of Kimberly, 414 Mass. 526, 529, 609 N.E.2d 73 (1993). Care & Protection of Martha, supra. Care & Protection of Stephen, 401 Mass. 144, 151, 514 N.E.2d 1087 (1987). Custody of Two Minors, supra, 396 Mass. at 618, 487 N.E.2d 1358, and cases cited. Moreover, the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference. Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 670, 493 N.E.2d 197 (1986). Custody of Two Minors, supra.

None of the judge's findings in this case was clearly erroneous. A finding is clearly erroneous when there is no evidence to support it, or 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." Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160, 360 N.E.2d 1051 (1977), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). See DiGiovanni v. Board of Appeals of Rockport, 19 Mass.App.Ct. 339, 343, 474 N.E.2d 198 (1985). Here each finding was adequately supported in the record, including the judge's finding that Eleanor's recantation lacked credibility. ⁸ The judge reviewed the documentary evidence and heard the witnesses testify. ⁹ He was in the best position to assess Eleanor's credibility, and the credibility of Eleanor's allegation. See, e.g., Care & Protection of Martha, supra, 407 Mass. at 328, 553 N.E.2d 902 ("judge's findings ... were clear, articulate, amply supported by the record, and fully set forth what testimony the judge found to be credible"); Care & Protection of Three Minors, 392 Mass. 704, 711, 467 N.E.2d 851 (1984) ("It is within the judge's discretion to evaluate the credibility of witnesses and to make his findings of fact accordingly.... He was not obliged to believe the mother's testimony or that of any other witness"). See also Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 407, 8 N.E.2d 895 (1937) ("the judge who has heard the testimony and seen the witnesses face to face has a better opportunity for determining the credibility of their conflicting statements than can possibly arise from reading a record"); Springgate v. School Comm. of Mattapoisett, 11 Mass.App.Ct. 304, 310, 415 N.E.2d 888 (1981) ("The credibility of witnesses, particularly, is a preserve of the trial judge upon which an appellate court treads with great reluctance").

It does not follow, however, that the findings, taken together, proved parental unfitness by clear and convincing evidence. See Care and Protection of Laura, supra, 414 Mass. at 793, 610 N.E.2d at 936. "Clear and convincing proof involves a degree of belief greater than the usually imposed burden of proof by a preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases." Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871, 330 N.E.2d 161 (1975). The finding of parental unfitness depends to a large extent on the underpinning that Flanders sexually abused Eleanor. That finding is based entirely on one allegation of inappropriate touching that was later withdrawn. Although the judge was not required to believe Eleanor's recantation, in the absence of any corroboration or physical evidence of sexual abuse, it cannot be said that parental unfitness was proved by clear and convincing evidence. In addition, although the judge's reliance on profile evidence that Flanders demonstrated characteristics associated with child sexual offenders might be appropriate in some circumstances, such evidence cannot support a finding that sexual abuse actually occurred. Commonwealth v. Day, 409 Mass. 719, 723-724, 569 N.E.2d 397 (1991). Thus, although the judge's findings were not clearly erroneous, the evidence on which they were based did not prove parental unfitness by clear and...