Custody of Two Minors
| Decision Date | 27 January 1986 |
| Citation | 396 Mass. 610,487 N.E.2d 1358 |
| Parties | , 54 USLW 2479 CUSTODY OF TWO MINORS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Sara Berman, Boston, for the minors.
William J. McGrath, Jr., and James A. Marsh, Quincy, for the parents, submitted a brief.
Francis X. Bellotti, Atty. Gen., and H. Reed Witherby, Asst. Atty. Gen., Boston, for Dept. of Social Services, submitted a brief.
Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.
The parents of two minor children appeal from the rulings and order of a judge in the juvenile session of a District Court, in a care and protection proceeding under G.L. c. 119, §§ 23-27, committing the children to the permanent custody of the petitioner, the Department of Social Services (department). We transferred the case to this court on our own motion. The parents argue that the judgment should be reversed because the judge erred by drawing an inference against them from their failure to testify in the proceeding. Additionally, they contend that the department did not establish by clear and convincing evidence that the parents were unfit to have custody of the children, and that the judge's findings do not reflect careful consideration of the evidence. We conclude that the judge did not err in drawing a negative inference from the parents' failure to testify and that the department's evidence overwhelmingly demonstrated that the parents were unfit to provide care and protection for the children. 1
We summarize the facts, using as our source the findings, order, and report of the trial judge. 2 The parents of the two minors were married on September 27, 1975. At the time of their marriage, both parents were in their mid-twenties. On January 1, 1976, the older of the two minors involved in this custody action, a son, was born. In March, 1976, the child was scalded while being bathed. When the son was less than five months old, on April 20, 1976, he was taken to the emergency ward of Quincy City Hospital. The father reported that the baby struck his head on the floor when a person holding the baby fell with the baby. An officer of the Quincy Police Department went to the home of the natural parents on June 21, 1976, in response to a report concerning an injured baby, and discovered the then five and one-half month old child lying in his crib with blood around his mouth. The father admitted having struck the baby to make him stop crying. The baby was treated at the emergency room of the Quincy City Hospital for a lacerated upper lip. Hospital records indicated that the mother had stated that the child was slapped hard by his father because the child was crying. On June 26, 1976, the parents voluntarily committed the child to the care of the department, and the child was placed with a paternal aunt. He was returned to his parents one and one-half months later. The parents and child began to receive support services from the department and its predecessor agency in 1976. These services included parenting instruction, foster care, weekly meetings with family members, referral for mental health services, day care for the child, and budget counseling for the parents.
No instances of abuse were documented during the next two years. In August, 1978, a social worker filed a notice pursuant to G.L. c. 119, § 51A, alleging that the child had sustained a bruised cheek inflicted by his father. A social worker at the child's preschool filed a report of abuse and neglect in January, 1981. The report alleged that the child had come to school with a "healed round burn on his right eyelid, over the cornea." In addition, the child reported that his parents had argued at home and that his father had thrown his mother across the room. The same social worker from the preschool filed a report of abuse and neglect in February, 1981. This report alleged that the child had come to school with third degree burns on his hands and chest. The mother allegedly sent a note to the school explaining that the child had been playing near the stove and was burned by a pot of boiling macaroni.
A second child, a daughter, was born to the parents on February 13, 1981. On March 25, 1981, at 5 A.M., the Quincy police were called to the family home due to a domestic disturbance. When they arrived, the officers observed the father restraining the mother on the couch. According to the father, the mother had threatened to throw the five week old infant out the window.
During the first week of April, 1981, a social worker at the boy's preschool reported that the child informed her of threats by the mother to kill the new baby. On April 13, 1981, a department social worker responded to an emergency at the family home. He observed a bruise on the mother's right cheek. The mother informed the social worker that her husband had hit her with a closed fist. She also reported that she had a lump on the back of her head, received when her husband hit her head against the headboard of a bed. Both children were placed in the temporary custody of the department as a result of an emergency care and protection petition filed by the department social worker on the same day.
On May 8, 1981, the older child was returned to the care of his parents, and the younger child was scheduled to return home several weeks later. The older child was removed from his parents' home again on June 15, 1981, however, after his father became violent at a family outing and injured the child, who has not been returned to his home since that time except for scheduled visits. The younger child has never been returned to the parents.
The original temporary order of custody provided for "liberal visitation." After unsupervised visits in November, 1981, the older child complained of being hit. The father admitted to hitting the child because of the boy's misbehavior. On December 24, 1981, and January 20, 1982, a social worker found the older child playing in the street by himself during unsupervised visits with his parents. The child's foster parents observed negative reactions after the child had visited his parents.
The department continued to offer and provide extensive services to the parents and children after entry of the temporary custody order, including: foster care for the children; weekly play therapy for the older child; programs at a mental health center for the mother and the younger child; and weekly individual and couples' therapy for the parents. In addition, referrals have been made to a family development clinic, and the mother has received weekly expressive therapy. 3 The judge found that, while the children were away from home and in foster care, the parents concentrated on their relationship and were able to make their home environment more stable. He also found that the parents attempted to cooperate with many of the programs made available to them, although the father rejected homemaker services. Both parents, he concluded, "evince appropriate reactions to loss of their custodial rights." From the record, the judge determined that, by early 1982, the parents had been making such progress and were benefitting so markedly from the various programs provided them that a consensus was developing among therapists involved toward return of the children to their parents.
The judge also found, however, that the mother consistently experienced grave difficulty in controlling the older child and essentially yielded him up to the excessive discipline of his father. An investigator appointed by the court determined that the mother was unable to handle both children, despite good intentions. 4 According to the therapist who saw the mother from April, 1981, until April, 1982, the mother had written a letter expressing concern about the prospect of the return of the children. The letter contained innuendos of self-destruction and of harm to the children.
Concerning the father, the judge adopted the opinions of a psychologist who evaluated the family in April, 1982, and these opinions were consistent with the conclusions of a 1979 diagnostic evaluation of the father. The judge found that the conclusions of various professionals involved with the family "raise[d] legitimate concerns about [the father's] capacity to be a competent parent" by reason of the history of abuse and aggressive behavior in the father's upbringing and the father's repeated loss of self-control and propensity toward anger. In addition, the judge found that the father failed to see the need for continued therapy and that the father did not understand the "seriousness of the family's proclivity for violence." The judge found that return of the children would undermine the gains realized by the parents through the programs offered by the department and their own efforts.
The judge found that the older child is aggressive and that this characteristic stems from fear. In addition, he found that the child did not view his environment as safe, could not control his impulses, and had a poor self-image. On several occasions, the judge found, the child had expressed either reluctance or unwillingness to visit his parents because of fear of his father. The judge adopted the opinion of the psychologist at Children's Hospital Medical Center, that the son needed an emotionally stable home environment unavailable to him in the home of his parents. The judge also ruled that, even though the younger child had not suffered any physical abuse or neglect at the hands of her parents, the court had the authority to take preventive action for her care and protection. See Petition of Catholic Charitable Bureau to Dispense with Consent to Adoption, 395 Mass. 180, 185, 479 N.E.2d 148 (1985); Custody of a Minor (No. 1), 377 Mass. 876, 883, 389 N.E.2d 68 (1979).
Based on these subsidiary findings relating to the best interest of the children and the ability of the parents to care and provide for the...
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