ABUSE
Bodily Injury
Commonwealth v. Dragotta, 2016 WL 731083 (Mass. Ct. App.). After joint jury-waived trial, defendant mother was convicted of wantonly or recklessly permitting another to commit assault and battery upon baby causing bodily injury, for which defendant boyfriend was convicted. Mother continued to allow boyfriend to care for infant knowing he had repeatedly and forcibly mishandled infant. He pushed one-month-old child’s knees into chest with such force she defecated, infant’s fractures were in various stages of healing, and mother’s statement that technique might have broken infant’s ribs was proof she knew maneuver exposed infant to bodily injury.
DUE PROCESS
Commonwealth v. Suero, 987 N.E.2d 1199 (Mass. 2013). Defendant’s conviction for rape of a child and indecent assault on a child were not separate and distinct acts allowing convictions for both in violation of double jeopardy clause. Defendant’s action in removing the child’s clothing was incidental to the inappropriate sexual contact which occurred immediately thereafter, justifying the rape charge.
EVIDENCE
Commonwealth v. Robert E. White, 2016 WL 6086204 (Mass.).On an issue of first impression, when a defendant is indicted for certain sex offenses against children more than 27 years after the alleged offense, there must be independent corroborating evidence relating to the specific criminal act.
HEARSAY
Doe v. Sex Offender Registry Bd., 966 N.E.2d 826 (Mass. App. Ct. 2012). Sex Offender Registry Board examiner’s findings were in error where they were based in part on agency report containing multiple levels of hearsay. Hearing examiner could not reasonably rely on references to incidents reaching back several years without clear indications of who observed the child’s behaviors or in what context they occurred or on conclusory statements by unknown professionals.
PARENTAL PRIVILEGE
Commonwealth v. Lark, 2016 WL 3693953 (Mass. Ct. App.). Defendant invoked common-law parental privilege affirmative defense in jury trial for assault and battery after he was seen repeatedly striking fiancée’s son inside vehicle with sufficient force to rock vehicle back and forth. State presented sufficient evidence to disprove affirmative defense because reasonable juror could have found defendant’s actions were unreasonable and did not safeguard or promote child’s welfare.
TESTIMONY
Commonwealth v. Mayotte, 56 N.E.3d 756 (Mass. 2016). Defendant was convicted of offenses related to sexual abuse of adopted son and husband’s sexual abuse of adopted daughter. She claimed error in exclusion of first complaint evidence relating to defense that she was victim, not perpetrator, of rape. First complaint rule was neutral rule of evidence to test credibility of allegation of sexual abuse, and was not limited to complaints of sexual abuse by complainant, but encompassed defendant’s purported complaint to friend that victim, her adopted son, had sexually assaulted her.
ADOPTION
BEST INTERESTS
In re Zander, 983 N.E.2d 1222 (Mass. App. Ct. 2013). In termination and adoption proceedings, trial court properly rejected father’s plan for adoption by his ex-girlfriend’s daughter. Testimony that she allowed him to babysit her son, despite order that he should have no contact with his children, allowed court to infer that she would not protect child from him.
HOUSING
In re Valerio, 2015 WL 6701539 (Mass. Ct. App.). Mother appealed adjudication of child as dependent and order dispensing with need for mother’s consent to his adoption. Evidence was sufficient to show mother was unfit to parent child. Mother had pattern of unstable housing that began before child was born and continued until trial. Two months before trial, she found appropriate temporary housing but pending criminal charges placed housing in jeopardy. Mother also had untreated mental illness and substantial cognitive impairments likely to hinder her ability to address child’s special needs.
CUSTODY
EMOTIONAL NEGLECT
B.K. v. Dep’t of Children & Families, 950 N.E.2d 446 (Mass. Ct. App. 2011). Father’s actions supported child welfare agency’s determination that he had emotionally neglected daughters by repeatedly violating custody order prohibiting him from contacting children; father’s visit to child’s school to deliver letters to daughter, in violation of probate court’s determination that children’s best interests would be served by requiring him to stay away from their school and obtain mother’s consent to contact them, represented an attempt to manipulate daughter for his benefit in custody dispute.
DOMESTIC VIOLENCE
In re Adoption of Zak, 32 N.E.3d 361 (Mass. App. Ct. 2015). Termination of parents’ rights was supported because children were subject to physical violence, there was pattern of violence and verbally abusive behavior that affected children adversely, and parents failed to consistently participate or engage in services. Trial court did not abuse its discretion by denying placement to maternal great-aunt based on her failure to acknowledge existence of domestic violence between parents. Trial court erred in failing to make specific findings regarding impact of domestic violence on appropriateness of post-termination visitation.
DELINQUENCY
MIRANDA RIGHTS
Commonwealth v. Smith, 28 N.E.3d 385 (Mass. 2014). “Interested adult” rule allows juvenile a meaningful opportunity to consult interested adult before waiving Miranda rights. Statute passed after defendant’s second degree murder conviction extended definition of juvenile to include 17 year olds. Evidence at trial included incriminating statements made by defendant after waiving his Miranda rights. Defendant was 17 years and 5 months old at time of murder, but court modified rule to include 17-year-old defendants on prospective basis only.
RELIGION
In re Adoption of Odetta, 2015 WL 3904599 (Mass. App. Ct.). In termination of parental rights proceeding against father convicted of killing child’s mother, court properly found adoption by maternal aunt and uncle, who were not Muslim, rather than paternal uncle, who was Muslim, to be in child’s best interests. Although child had been given Muslim name at birth and was formally recognized into Muslim faith, she was thriving under care of maternal aunt and uncle and all her essential needs were met. Paternal uncle was allowed visitation to continue child’s exposure to Muslim faith and culture.
DEPENDENCY
FAILURE TO PROTECT
In re Danielle., 978 N.E.2d 532 (Mass. 2012). Trial court properly determined that child faced serious risk of harm in mother’s care where mother allowed contact with father, a sex offender. Though father was facing possible probation revocation, thus preventing his access to the child, the court could still find child was at serious risk based on mother’s failure to protect the child.
GROUNDS
In re Laurent, 22 N.E.3d 974 (Mass. Ct. App. 2014). Court found evidence did not support determination that mother was unfit and child was in need of care and assistance. Parent must place child at serious risk of peril from abuse, neglect, or other activity harmful to the child. Mother’s cognitive disabilities, her failure to monitor child’s asthma treatment, and her occasional use of tobacco in child’s presence, as well as child’s expressed preference to live with foster family, were not sufficient.
PARENTAL FITNESS
In re Vick, 2016 WL 3693948 (Mass. Ct. App.). Juvenile court found child in need of care and protection and awarded father custody after determining mother was unfit to assume parental responsibility. Despite stipulation of conditional custody explaining what actions she needed to take to maintain custody, mother’s home was in deplorable condition and had no heat, minimal lighting, and piles of trash and dirt on floor. Mother rejected all attempts by child welfare agency to work with her to improve situation.
SUPERINTENDENCE
In re Isabelle, 946 N.E.2d 110 (Mass. 2011). Trial court’s judgment would not be disturbed under the court’s superintendence powers because evidence showed agency made reasonable efforts to keep minor mother with her child in foster care, placing her without success in two homes with her child, and there was no reason to believe a third home would have had a different result; supreme judicial court’s power of superintendence is exercised only sparingly when error can not be remedied under ordinary review process and there is a substantial claim of violation of rights that could affect other cases.
FOSTER PARENTS
CORPORAL PUNISHMENT
Magazu v. Dep’t Children & Families, 2015 WL 9587644 (Mass.).Applicants to become foster and preadoptive parents sought judicial review of final decision of the child welfare agency denying their application because they used corporal punishment to discipline their biological children in their home. The court found the agency’s decision to deny the parents’ application was not arbitrary or capricious, and was supported by substantial evidence. Prohibiting use of corporal punishment in a foster home outweighed the burden on applicants’ religious beliefs. FULL SUMMARY
GUARDIANSHIP
REPRESENTATION
In re V.V., 24 N.E.3d 1022 (Mass. 2015). Parent of minor child has right to counsel when someone other than the parent seeks to be appointed as child’s guardian. Guardian assumes significant rights and responsibilities that otherwise would reside with parent. Although parent’s underlying rights are not forever terminated, they are severely circumscribed, becoming subsidiary to those of guardian.
TERMINATION OF PARENTAL RIGHTS
ADOPTION
In re Anisha, 2016 WL 4145016 (Mass. Ct. App.). Mother who previously lost custody of six older children took child out of state and filed petition in other state seeking appointment of paternal aunt as guardian of child. Child welfare agency filed dependency petition, which mother moved to dismiss on jurisdictional grounds. Juvenile court took jurisdiction, terminated mother’s parental rights, and approved agency’s plan for adoption. Mother’s filing of petition out of state did not bar in-state judge from adjudicating mother unfit and terminating her parental rights.
APPEALS
In re Malik, 997 N.E.2d 440 (Mass. App. Ct. 2013). Where mother stipulated being unfit in termination proceeding but appealed disposition following termination where juvenile court found adoption by foster parents over relatives was in child’s best interests, mother did not have a right to appeal. Her purported condition on stipulating that she recommended her parents as an adoptive resource required the judge consider them as an option, but did not confer mother with a right to appeal after rights were terminated.
HEARSAY
Adoption of Daisy, 948 N.E.2d 1239 (Mass. 2011). At termination of parental rights trial, child’s out-of-court statements describing sexual abuse by father when she was nine years old were admissible under statute permitting such statements by children who are under 10 years of age, regardless of how old child was when statements were sought to be admitted at trial.
In re Olivette, 944 N.E.2d 1068 (Mass. App. Ct. 2011). Trial court properly admitted hearsay statements of child through several witnesses about sexual abuse despite questions about her competence due to cognitive delays; rule allowing exception for these statements did not require child to be competent provided that evidence established reliability and judge had heard extensive testimony in this case from 12 witnesses to make that determination.
REPRESENTATION
In re Jacques., 976 N.E.2d 814 (Mass. App. Ct. 2012). In termination of parental rights proceeding where child’s trial attorney supported petition to terminate parental rights and did not object to anything at trial, child could pursue appeal based on changed position. Child was appointed a different attorney who advocated for reunification and child’s arguments would be considered on the merits on appeal. Issues not raised at trial are not preserved for appeal absent exceptional circumstances and young child’s changed position was an appropriate exception.
In re Meaghan., 961 N.E.2d 110 (Mass. 2012). Trial court was correct in holding that where the child’s legal guardians petitioned for adoption, effectively terminating father’s parental rights, the indigent father had a right to an appointed attorney. Though statute provided for representation in cases brought by the public child welfare agency, father’s constitutional right to parent was similarly at risk in case brought by private parties.
TELEPHONIC TESTIMONY
Adoption of Thea, 942 N.E.2d 190 (Mass. 2011). Mother’s right to due process was not violated when trial court permitted institutionalized child to testify by phone in termination of parental rights proceeding; logistical challenges of securing child’s presence in court and clinical reasons supported judge’s decision to all telephonic testimony.
VISITATION
In re Cecily, 989 N.E.2d 532 (Mass. App. Ct. 2013). Trial court did not abuse its discretion in denying post-termination visitation where mother had witnessed severe physical abuse, had not attempted to stop it, and failed to separate from the abuser. The finding was supported by testimony showing the child had little bond with the mother having had little contact with her except for two months of her life.
In re Douglas, 2016 WL 617432 (Mass.). Trial court acted within its discretion in denying visitation following termination of mother’s and father’s parental rights. Mother continually failed to maintain appropriate boundaries with one child and lacked significant bond with her other five children. One child had never met father, another had last seen father as an infant, and father’s last visit with another child was almost one year before trial.
In re Ilona, 944 N.E.2d 115 (Mass. 2011). Court properly left future visitation to discretion of the adoptive parent, despite finding that child had a strong bond with her biological mother; while a judge may order continued visitation, it is not required when a strong bond exists, and fact that child had an adoptive parent who showed she acted in the child’s best interest regarding visitation with her mother supported decision.
VISITATION
In re Zak, 90 Mass. App. Ct. 840 (2017). As matter of first impression, mother and father, whose parental rights were terminated, retained standing to participate in hearing on posttermination visitation that took place after matter was remanded. Even though termination of parental rights order became final after trial and appeal, hearing after remand was continuation of termination proceeding to which parents were already party.
WITNESSES
In re Norbert, 986 N.E.2d 886 (Mass. App. Ct. 2013). While trial judge went beyond the permitted questioning the witnesses to clarify testimony, asking around 1000 questions to the three attorneys combined, the error was harmless. The overwhelming evidence of mother’s failure to complete services, visit, and repeatedly subjecting the children to unsafe or unhealthy situations would have had the same result.