Adoption of Larry

750 N.E.2d 475, 434 Mass. 456, 2001 Mass. LEXIS 376
CourtMassachusetts Supreme Judicial Court
DecidedJune 28, 2001
StatusPublished
Cited by57 cases

This text of 750 N.E.2d 475 (Adoption of Larry) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adoption of Larry, 750 N.E.2d 475, 434 Mass. 456, 2001 Mass. LEXIS 376 (Mass. 2001).

Opinion

Spina, J.

A judge in the Boston Juvenile Court awarded temporary custody of three and one-half month old Larry to the Department of Social Services (department) on its care and protection petition, filed in December, 1997, after the department substantiated a report filed pursuant to G. L. c. 119, § 51A, by health care providers at Children’s Hospital in Boston that Larry was suffering from shaken baby syndrome and that Larry’s parents were his sole caretakers at the time the abuse was inflicted. In April, 1999, the department obtained leave to amend its petition to add a prayer for termination of parental rights. G. L. c. 119, § 26. G. L. c. 210, § 3. After trial, the judge found that Larry was abused, and that the abuse was inflicted when his parents were his sole caretakers. The judge concluded that at least one parent had to be the abuser, but the evidence did not establish which parent, or if both, abused Larry. He further concluded that, if one parent did not abuse Larry, that parent nevertheless is unfit because of an inability to protect Larry from abuse. The judge awarded permanent custody of Larry to the department, and ordered that decrees issue dispensing with the need for consent of Larry’s parents to his adoption.

The mother appealed to the Appeals Court,2 which reversed the decrees of the Juvenile Court in an unpublished memorandum and order pursuant to its rule 1:28. Adoption of Larry, 49 Mass. App. Ct. 1121 (2000). The court held that, although the [458]*458judge’s subsidiary findings of fact had adequate support in the record, his ultimate finding that the mother was currently unfit had not been established by clear and convincing evidence. We granted the department’s application for further appellate review. The principal issues on appeal are the correctness of the judge’s subsidiary findings, and the sufficiency of the evidence on the issue of unfitness. We affirm the decrees of the Juvenile Court.

1. We summarize the judge’s findings and conclusions, and the supporting evidence. Larry’s parents were married in June, 1994. Larry, the couple’s only child, was born on August 30, 1997. On Tuesday, December 9, 1997, Larry began projectile vomiting two or three times a night when the father was taking care of him and the mother was at work. His parents brought him to his pediatrician, Dr. Lester Hartman, on Friday, December 12. The father told Dr. Hartman he was worried that there was something seriously wrong. The parents described the symptoms, and mentioned that Larry had let out a high-pitched scream on Tuesday. During the examination, the mother called Dr. Hartman’s attention to two nonparallel linear bruises in the child’s perineal area. The doctor would not have seen the bruises, concealed by the scrotum, unless the mother had pointed them out. The mother told Dr. Hartman that the bruises occurred when she placed Larry on a bicycle seat the previous Sunday for a photograph taken by the father. The judge found that the mother must have been aware of these bruises before going to the doctor’s office. Dr. Hartman found the explanation odd and the bruises unusual, but, because the mother did not appear to be trying to conceal anything, he sent the family home with instructions to return the next day.

The family returned on December 13 and reported that Larry had vomited three times the previous evening. Dr. Hartman observed Larry for several hours after giving him formula. Larry held the liquid, so the doctor sent the family home. He telephoned the parents later that day to see how Larry was doing, and they reported that he was doing well. The father telephoned the doctor later that night to report that Larry had vomited again. The doctor told him to bring Larry to Norwood Hospital immediately, which the parents did, although the mother was upset that Larry might not be home for Christmas. [459]*459Dr. Hartman telephoned the physician on duty in the emergency room that night, to discuss the history.

Dr. Hartman saw Larry at Norwood Hospital the next morning, December 14. The nursing staff reported that Larry’s nail-beds were dirty and his scalp was abnormally irritated. They noted bruises in the perineal area, bruises on the top and back of Larry’s head, and a bruise on the sole of his left foot. The doctor noted, as he had on December 12, that Larry had no fever or diarrhea. Perplexed and concerned by these observations, Dr. Hartman ordered a computerized axial tomography (CAT) scan. The CAT scan revealed evidence of intra cranial bleeding. When confronted with the CAT scan results, the parents explained that the hemorrhaging might have been caused when Larry hit his head on a bassinet that past Tuesday. Larry was transported by ambulance at approximately noon that day to Children’s Hospital in Boston, where he was admitted at 1:35 p.m.

Tests and examinations conducted at Children’s Hospital indicated that Larry had extensive, multiple retinal and preretinal hemorrhages in both eyes, and bilateral subdural hematomas of different ages. Dr. Eli Newberger, director of the family development program and medical director of the child protection team in the department of pediatrics at Children’s Hospital, opined from Larry’s head injuries that Larry had suffered repeated episodes of trauma, and that the retinal hemorrhages could have been caused only by someone intentionally shaking the child violently for at least thirty seconds. Dr. Newberger also concluded that Larry’s perineal bruises, which he observed on December 15, could not have been caused by a single placement on a bicycle seat, as the mother spontaneously informed him, but were caused by two discrete instances of blunt trauma from a linear object such as a stick. In his opinion, the bruises were no more than three days old.3 The parents denied abusing Larry, but admitted being his only caretakers. Pursuant to G. L. [460]*460c. 119, § 51A, staff from both hospitals filed reports of suspected abuse with the department. The department filed its care and protection petition and was awarded temporary custody of Larry on December 16, 1997. After Larry’s discharge from Children’s Hospital on December 22, 1997, the department placed him in the home of the father’s sister and her husband, where he has since resided.

Shortly after Larry was taken from them, the mother and father moved from their apartment to the home of her parents. The mother understood from her lawyer in early 1998 that she and the father would have to separate in order for her to regain custody of Larry. She had considerable difficulty accepting the idea of separation. As a teenager, her unusual height and facial hair, attributable to Stein-Leventhal Syndrome (an imbalance in male-female hormones) caused her to be extremely shy. The father is the only man she ever loved and with whom she had been intimate. She married the father when she was thirty-five years old, after dating him off and on for several years. During their marriage the mother acquiesced in the father’s dominance and became highly dependent on him, but she never feared him. Their relationship was not marked by domestic violence, and she never knew him to be violent. The couple tried for nearly three years, without success, to have a child. They then tried in vitro fertilization. Larry was thus conceived, to the great joy of the mother.

When asked by a court clinician in March, 1998, how she might protect Larry from future harm the mother indicated that she and the father were discussing the subject of separation.

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Cite This Page — Counsel Stack

Bluebook (online)
750 N.E.2d 475, 434 Mass. 456, 2001 Mass. LEXIS 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adoption-of-larry-mass-2001.