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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) (laterwithdrawn 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.