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14-P-220                                                Appeals Court

             ADOPTION OF EDEN (and two companion cases1).


                                No. 14-P-220.

         Worcester.       October 2, 2014. - September 11, 2015.

                 Present:     Green, Rubin, & Agnes, JJ.


Minor, Care and protection. Parent and Child, Care and
     protection of minor. Practice, Civil, Care and protection
     proceeding. Child Abuse.



     Petition filed in the Worcester Division of the Juvenile
Court Department on January 4, 2011.

     Following review by this court, 87 Mass. App. Ct. 1109
(2015), the case was heard by Anthony J. Marotta, J.


     Tamar M. Gureghian for the mother.
     S. Michael Fournier for the father.
     Roy Vincent Montoya for Department of Children and
Families.
     Christine M. Durkin for the children.


     RUBIN, J.        This case involves the proper role of

allegations in decisions involving the termination of parental

     1
       Adoption of Sam and Adoption of Mark.       The children's
names are pseudonyms.
                                                                      2


rights, and the proper role of the appellate courts in reviewing

those decisions.   Both the mother and the father appealed in

this case from decrees terminating their parental rights to

their three minor children, Eden, Sam, and Mark.    We affirmed

the decrees with respect to the mother, but remanded the

father's case to the Juvenile Court judge for clarification of

the basis of his decision with respect to the father.     See

Adoption of Eden, 87 Mass. App. Ct. 1109 (2015).    The judge

issued supplemental findings of fact and conclusions of law, and

we now affirm.

    1.   Background.    There was never any doubt in this case

that the evidence was sufficient to support the termination of

the father's parental rights.    See Adoption of Peggy, 436 Mass.

690, 701 (2002) ("Before a judge may award permanent custody of

the child to the department, the judge must find, by clear and

convincing evidence, that the natural parent is unfit to further

the welfare and best interests of the child").     In his original

findings of fact and conclusions of law, the judge documented

many specific instances of behavior that either harmed the

children or placed the children at a great risk of harm.      Among

other things, the judge found, and it is not contested, that

Eden, the oldest child, was left at home when she was five years

old to babysit the then one year old middle child, Sam, who has

sickle cell anemia.    After the Department of Children and
                                                                    3


Families (department) obtained custody of the children, parental

visits with the children frequently ended either with the

parents being escorted out by the police or the visit being cut

short by argument.    At a meeting with a department caseworker,

the mother began yelling at the caseworker and the father put

his hands over the mother's mouth.   The mother and father then

began hitting each other.   Due to the commotion three or four

Worcester police officers had to come to the room, and the

mother was arrested, shackled, and carried from the room yelling

and screaming.

    The judge also found, among other things, that the parents

do not appreciate the medical needs of the children, which are

considerable.    He found that Sam was hospitalized for four days

shortly after coming into the department's custody, and required

a blood transfusion, apparently because of his sickle cell

anemia.   Sam also has learning disabilities and does not have

appropriate language skills at age five, does not speak more

than one or two words, and needs constant work with his speech.

He has also suffered from fevers and dehydration.   He requires

constant medical attention.   Eden is on an individualized

education plan (IEP) for global learning disabilities, and at

age eight cannot read or write and has comprehension

difficulties.    At the time the department became involved with
                                                                    4


the family, Eden was five years old and had not seen a medical

professional for three years.

    The judge's initial decision, however, was ambiguous about

the extent to which the judge relied on allegations or findings

of sexual abuse by the father.   The department had many

interactions with the family between August, 2009, and January,

2011.   But the instant case has its genesis in an allegation of

sexual abuse by the father that was made in January, 2011.

    The judge's decision reports the allegations in great

detail.   On January 4, 2011, two G. L. c. 51A reports were filed

by mandated reporters alleging the sexual abuse of Eden by the

father.   On January 1, 2011, the mother had brought Eden to the

hospital to be examined.   The mother stated that she noticed

Eden's vaginal area to be "odd in shape" and that her daughter

was complaining of pain while urinating and walking.   After Eden

made the statement that the father had "put tail in me" pointing

to her vaginal area, the mother telephoned 911, and Eden was

brought to the hospital to be evaluated.

    Eden reportedly told the emergency medical services worker

during the ride to the hospital that she wanted to go to a safe

place, as the father had knives with him and would harm people

in the home.   During a Sexual Abuse Intervention Network (SAIN)

interview, apparently not viewed by the judge but described by

him, "[Eden] stated that Mother and Father both told her to lie
                                                                    5


about any sexual abuse and to instead say that a boy had touched

her, because Mother did not want Father to go to jail because

they had 'too many babies' to take care of and Mother did not

have any money.   [Eden] stated that the sexual abuse happened on

more than one occasion -- 'a lot, two times, no I mean a lot.'

She said the incidents happened when Mother was at church and

that her Father came in the room where she was sleeping and took

her jeans off, but not her underpants as she was not wearing

any, and then put his 'tail' in her."

    The father was arraigned on charges relating to this

allegation and detained by United States Immigration and Customs

Enforcement (ICE) because he was in the country illegally, and

he was held on an ICE detainer.   On January 4, 2011, the

department filed an emergency care and protection petition

seeking custody of the children, which was granted, and it was

then that the children were removed from the mother's care.

    The judge's decision reports that after the children were

placed in foster care by the department, "Mother admitted that

she followed [Eden] to school to find out where she was going.

At the school, Mother pretended to be someone else interested in

sending her daughter to that school, and asked for a tour to

gain access to the school.   However, at some point, Mother

wandered away from the tour, found her daughter and brought her

to a downstairs bathroom in the school.   Mother had brought her
                                                                        6


daughter into a bathroom stall and was telling her 'to speak the

truth and stop making up stories' regarding the recent

allegations of sexual abuse that [Eden] had made against

Father."

    Shortly after this incident Eden recanted her sexual abuse

allegations.     The district attorney's office ultimately filed a

nolle prosequi in the father's criminal case.       The mother was

subsequently charged with intimidation of a witness.       When

arrested, she was sent to a psychiatric hospital.      At the time

of the termination trial that charge was still pending.

    These allegations formed a center of gravity in the judge's

initial decision.       However, despite their apparent significance

to his decision, the judge made no finding with respect to these

allegations.     As judicial decisions sometimes do, his simply

recited the evidence, stating "there have been serious

allegations against Father concerning the sexual abuse of

[Eden].     These allegations resulted in criminal charges and a

ten (10) month detention of Father.       The charges were ultimately

dropped."

    2.      Analysis.    If the judge meant that among the bases for

his decision to terminate the father's parental rights were the

serious allegations of sexual abuse, it would have been our

responsibility to vacate the decrees.       It is a bedrock principle

that parental rights may not be terminated on the basis of an
                                                                     7


unproven allegation, even one as grave as this.   See, e.g.,

Custody of Eleanor, 414 Mass. 795, 800-801 (1993) (later-

withdrawn allegation of sexual assault "in the absence of any

corroboration or physical evidence of sexual abuse . . . cannot

be said [to establish] parental unfitness . . . by clear and

convincing evidence").   For this reason, it is essential that

trial judges who recite allegations explain their significance

to the disposition of the case.   Here, the department urged us

to affirm even assuming the judge meant to rely on the

allegations, because of the sufficiency of the other evidence in

the record to support termination.   But it is for the trial

judge, not us, to determine in the first instance whether

unfitness has been proven by clear and convincing evidence, and

whether termination of parental rights is in the best interests

of the children.   If a judge's conclusion rests on an improper

factor, the judgment must be vacated and the case remanded for

reconsideration without use of that factor.    Cf. Commonwealth v.

Arroyo, 451 Mass. 1010, 1011-1012 (2008).

    To be sure, our courts have held that where a decision

terminating parental rights contains a small number of minor

factual errors, we may nonetheless affirm the decree without

recourse to a remand to the trial court.    See, e.g., Adoption of

Sherry, 435 Mass. 331, 336 (2001) (affirming termination of

parental rights despite error in excluding information at trial,
                                                                     8


stating "we need not disturb a judgment when error did not

affect the outcome"); Adoption of Peggy, 436 Mass. at 702

(affirming termination of parental rights despite two erroneous

findings "[b]ecause they relate only marginally, if at all, to

the judge's ultimate conclusion of unfitness, [thus] we consider

them harmless").    But given the prominence of the alleged sexual

abuse in the judge's decision, that approach would not have been

appropriate here.     Consequently, we remanded the case to the

trial judge for clarification of the basis for his

determination.   See Adoption of Eden, 87 Mass. App. Ct. at 1109.

    3.   The judge's supplemental findings of fact and

conclusions of law.    The judge promptly provided us with

supplemental findings of fact and conclusions of law.    In the

findings of fact he reported that he "did not hear sufficient

evidence to make a determination by a preponderance of the

evidence that the sexual abuse by Father had taken place," and

that he "ma[de] no finding as to the truth of the allegations of

sexual abuse by Father."    He made clear, however, that in his

initial decision he "did not rely on the sexual abuse

allegations."

    Rather, he placed "substantial weight on the inappropriate

and troubling way in which . . . Father . . . chose to deal with

those allegations."    "[R]ather than work with the [department]

to obtain services to heal the obvious handicaps of his family,
                                                                     9


Father refused to accept services, made accusatory claims of

racial bias, and acted in a manner which further harmed his

children."   He repeated some of the facts recited above

concerning domestic violence, and reiterated that the father,

like the mother, does not "seem[] to have any understanding of

the emotional needs of [Eden] and the serious medical needs of

[Sam] and [Mark].   In the nearly four years during which this

family has been involved with the [department], Father has shown

no insight, made little or no progress and has made no attempt

at cooperation."    He concluded that "Father has grievous

shortcomings that ha[ve] put the Subject Children at risk."

    In light of the judge's clarification, we see no error in

the decrees terminating the parental rights of the father.    None

of the facts found were clearly in error, and, taken together,

they support by clear and convincing evidence his determinations

both of unfitness and that termination is in the best interests

of the children.

                                     Decrees affirmed.
