as: 50 Mass.App.Ct. 743, 741 N.E.2d 456)
Court of Massachusetts,
OF ARNOLD (and two companion cases) [FN1].
Adoption of Jake and Adoption of Brian, Arnold's siblings. All
the names are fictitious.
Decided Jan. 25, 2001.
Daniel R. Katz, for the father.
Ginny Sinkel, Assistant Attorney General, for Department of Social Services.
Kevin D. Ainsworth, Boston, for
Present: LENK, DREBEN,
& GILLERMAN, JJ.
The appellant is a member of
the Wampanoag tribe and the biological father of three children who are
the subject of a parental rights termination proceeding brought pursuant
to G.L. c. 210, § 3. His tribal affiliation implicated the Indian
Child Welfare Act, 25 U.S.C. §§ 1901 et seq. (1994), in
the State court termination proceeding. On appeal, the father asserts
error in four respects: (1) the tribe did not receive timely notice of
the proceedings in violation of 25 U.S.C. § 1912; (2) certain
subsidiary findings of fact were clearly erroneous; (3) the trial judge
erroneously admitted hearsay statements alleging sexual abuse by the father;
and (4) the evidence is insufficient to meet the heightened standard for
termination of parental rights set forth in 25 U.S.C. § 1912.
After hearing ten days of testimony in the period from February to June
of 1998, and receiving in evidence fifty-two exhibits, the judge made
well over two
hundred subsidiary findings of fact which we now summarize. The appellant
and his wife had four children in their care, three from their marriage
and one from a former relationship by the wife. The Department of Social
Services (DSS) filed a petition on November 22, 1993, pursuant to G.L.
c. 210, § 3, to dispense with the need for parental consent
to the adoption of the four boys. The mother was a party to the proceedings
until she withdrew her objections on the fourth day of trial; her son
Alex from a previous relationship is accordingly not a subject of this
The events leading up to the
termination of the father's parental rights began in April, 1990, almost
nine years before trial began, when the police were called to the family's
home in response to a complaint of domestic violence. Two police officers
and a DSS social worker testified at trial to the filthy conditions in
the home and the flea bites and scratches on the three older boys. (Brian,
the youngest, would not be born until 1991.) At this time Alex was four,
Arnold was almost two years old, and Jake was eight months old. A G.L.
c. 119, § 51A, report alleging neglect and emotional maltreatment
was filed and supported, and DSS obtained temporary custody of the boys,
but did not remove them from the home. Ten days later another § 51A
report was filed alleging that four year old Alex had cigarette burns
on the palm of his hand.
DSS social worker Carol Murphy was assigned to the case to address issues
of domestic violence, the family's living conditions, and neglect of the
She learned in August, 1990, that the home was without electricity, gas,
or hot water. The following month, the father would not allow her into
the home. In October, DSS filed a care and protection petition pursuant
to G.L. c. 119, § 24, and was awarded temporary custody of the
three children. The oldest boy thanked the social worker who removed him
from his parents' care. In that same month, a § 51A report was
filed, alleging that the mother's niece, who babysat for Alex, had sexually
abused him, and that, notwithstanding the mother's knowledge of the abuse,
the mother permitted the niece in the family home.
During her two and one-half year
tenure on the case, Murphy prepared four service plans, the fourth remaining
unsigned by the father; the aim of those plans was family reunification.
The trial judge found that lack of compliance with the plans, including
repeated failure on the father's part to meet with a parent aide and to
attend counseling and undergo a substance abuse evaluation, prevented
the return of the children. Supervised visitations occurred at least monthly
in this period and often caused the children extreme anxiety. In 1991,
the children spent overnight unsupervised visits with the parents. On
occasion Jake returned to foster care with diaper rash, once bleeding
from the groin area, and once with a black eye. Arnold returned to foster
care on one occasion wearing a urine soaked shirt. By June, 1991, however,
compliance with the service **459
plans had increased sufficiently to allow the children's return to
The youngest son, Brian, was
born shortly after the other children returned home. For the next several
months, Murphy continued to visit the home and soon discovered it in much
the same condition as had first occasioned the children's removal. The
home was filthy, broken pipes in November, 1991, had caused a partial
flood, and the electricity was off again. The trial judge credited Murphy's
testimony that the father had diverted money designated to provide necessities
for the newborn baby to buy a television antenna. The baby, Brian, was
frequently found sitting in a car seat at home, which flattened a portion
of his head and caused significant deterioration of his ability to use
his left arm, a condition later rectified only after a year of daily therapy
by his foster parents.
In December, 1991, and January, 1992, the home was again without utilities.
In January, the police were again summoned to the home when the father
became enraged, held a gun to a friend's head, and threatened to "ice"
him in the children's presence, an incident for which the father later
served time in prison. Two days after this incident, the mother obtained
a restraining order against the father. The children were placed in foster
care a second time that same month and, except for Brian who would return
briefly in the spring of 1992, have not since returned to their biological
Brian entered foster care "not
smelling like a baby" in the words of his foster
father. He had severe cradle cap, diaper rash, and his penis was covered
with a white crust. He was emaciated, but at first only wanted to drink
water. When he did eat, it seemed as if he had been starving. Both Alex
and Jake later disclosed that their father had sexually abused them. They
made these disclosures to several therapists after they manifested certain
aggressive and sexualized behaviors requiring evaluation.
Arnold and Jake have been diagnosed
as suffering from, among other things, posttraumatic stress disorder,
which the trial judge found to be the result of the father's treatment
of them. The father declined to take any responsibility for the children's
severe psychological disturbances and consistently refused to follow the
service plan mandates that he attend counseling and participate in both
sexual and substance abuse evaluations. Indeed, upon being approached
by a DSS investigator regarding Alex's disclosures of sexual abuse, the
father attempted to explain away Alex's sexualized behavior.
The judge found that the father
had exhibited minimal interest in the welfare of his children in the five
years between their entry into foster care and the beginning of trial.
Each of the numerous social workers handling the case in that time period
testified that the father never inquired as to the children's welfare
and never sent them cards or gifts. His contact with DSS was minimal,
as was his compliance with service plans. The counseling he did attend
was a requirement of his probation, and it neither addressed parenting
or sexual abuse
issues nor caused the father to face the extreme trauma his children had
experienced at his hands.
Therapists for the three younger
children testified that any contact with their father would be detrimental
to them. The psychiatrist treating Arnold and Jake opined that, were the
to be returned to their father's care, their symptoms of posttraumatic
stress disorder would worsen and likely later entail multiple personality
disorder, suicidal and homicidal tendencies, and a variety of other psychological
disturbances. In sum, they would likely not become functional adults if
returned to their father. The psychiatrist recounted that Arnold and Jake
had spoken to him of their fear of their father as well as of their feelings
of wanting nothing to do with him. Brian's psychiatrist conducted an attachment
assessment of him to gauge the likely effect of removal from his **460
foster family, the only family he remembers. He opined that Brian was
strongly attached to his foster parents and that removal from them would
be devastating, increasing the probability that he would be subject to
major depression or other psychological disturbances as he approached
On the basis of these subsidiary
findings, the judge made ultimate findings that the father was currently
unfit to parent his three children and that the children's best interests
require that they not have any contact with their father. The judge also
specifically found that the evidence supported a determination
beyond a reasonable doubt that continued custody of the children by the
father would likely result in serious emotional or physical damage to
the children. The father's right to receive notice or to consent to the
adoption of his children was accordingly terminated.
Before turning to the four specific issues that the father raises
on appeal, we observe that this case presents us for the first time with
a parental rights termination proceeding governed by the Indian Child
Welfare Act (ICWA) enacted in 1978. 25 U.S.C. §§ 1901 et
seq. The ICWA was enacted in response to an alarming number of instances
where the rights of Indian parents to their children were terminated and
their children were adopted into non-Indian homes. 25 U.S.C. § 1901.
In Mississippi Choctaw
Indian Band v. Holyfield,
490 U.S. 30, 32-36, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), the Supreme
Court recounted Congressional findings as to the shortcomings of State
laws applicable to termination proceedings. Congress found that such laws
are often blind to the cultural differences inherent in Indian family
and tribal life [FN2]
and to the particular interest Indian tribes have in ensuring that Indian
children grow up in those tribes. Id.
at 34-36, 109 S.Ct. 1597. *748
25 U.S.C. § 1901(3)-(5). Not only were there an alarming number
of unwarranted parental rights terminations, but even in those instances
where terminations were warranted, State law required no effort to place
the Indian child in an Indian family. The cultural biases leading to unwarranted
of parental rights, when coupled with the failure to recognize the crucial
interest that tribes have in the placement of Indian children within their
tribes, threatened continuing tribal viability. The ICWA was the legislative
One illustration of a cultural misconception with often drastic consequences
concerns the predominant perception that the nuclear family is the proper
locus for child rearing. Mississippi
Choctaw Indian Band v. Holyfield,
490 U.S. at 34-35, 109 S.Ct. 1597. This is untrue in some Indian cultures
which may include "perhaps more than a hundred relatives who are
counted as close, responsible members of the family." Id.
at 35 n. 4, 109 S.Ct. 1597. Social workers unaware of their bias in this
respect might infer neglect if a child was found in the care of those
outside the nuclear family. Ibid.
To counter the unwarranted removal
of children, the ICWA provides in pertinent part that, "[n]o termination
of parental rights may be ordered in [a parental rights termination] proceeding
in the absence of a determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child."
25 U.S.C. § 1912(f). When termination is warranted, the ICWA
requires that preference "be given, in the absence of good cause
to the contrary, to a placement with (1) a member of the child's extended
family; (2) other members of the Indian child's tribe; or (3) other Indian
families." 25 U.S.C. § 1915(a). The act thus serves to
protect not only the interests of the child and the parents, but of the
tribe as a whole. 25 U.S.C. § 1902.
Congress empowered tribal courts
to accomplish these goals, thereby creating a dual jurisdictional framework
which balances tribal and State court authority. 25 U.S.C. § 1911.
If a child is domiciled on a reservation, the tribe has exclusive jurisdiction
over child custody proceedings. 25 **461
U.S.C. § 1911(a). If a child is not domiciled on a reservation,
then State and tribal courts have concurrent jurisdiction, and a State
court is required to notify the tribe if it has reason to believe that
the custody proceedings involve an Indian child. 25 U.S.C. § 1912(a).
The tribe may choose to intervene in the State court proceeding at any
time. 25 U.S.C. § 1911(c). Jurisdiction will remain in State
court if the tribe or either parent declines tribal jurisdiction, but
the State court may also decline to transfer the proceedings to tribal
court if it finds "good cause" not to do so. 25 U.S.C. § 1911(b).
The father asserts in this appeal
that (1) the tribe did not receive timely notice of the proceedings in
violation of 25 U.S.C. § 1912(a); (2) six subsidiary
findings of fact were clearly erroneous; (3) the judge erroneously admitted
hearsay statements alleging sexual abuse by the father; and (4) the evidence
is insufficient to meet the heightened standard for termination set forth
in 25 U.S.C. § 1912(f). We address each of the father's arguments
to the tribe. The father
contends that the tribe did not receive timely notice in compliance with
the requirements of 25 U.S.C. § 1912(a). Section 1912 requires
that, in any involuntary State court proceeding, such as this termination
proceeding under G.L. c. 210, § 3, and care and protection proceedings
under G.L. c. 119, § 24, "the party seeking the foster
placement of, or termination of parental rights to, an Indian child shall
notify the parent or Indian custodian and the Indian child's tribe, by
registered mail with return receipt requested, of the pending proceedings
and of their right of intervention." 25 U.S.C. § 1912(a).
Although the tribe was notified in 1995 of the termination proceedings
commenced that year, the father maintains that the tribe should have been
notified prior to the earlier 1990 care and protection proceedings. While
not plainly articulated in his brief, we surmise that the father contends
in this regard that the initial lack of notice somehow deprived the State
court of jurisdiction over the later termination proceedings.
As noted, the ICWA gives presumptive jurisdiction to the tribe unless
either parent contests it, the tribe refuses jurisdiction, or the court
finds "good cause" to keep the proceedings in State court. Although
the record is not particularly revealing on this issue, an agreement pursuant
to 25 U.S.C. § 1919(a), applicable to this case, was apparently
entered into between the Wampanoag tribe and the Commonwealth as to State
court jurisdiction. In any event, other than the limited argument raised
concerning notice, the father does not dispute that proper jurisdiction
for these proceedings was in the State court.
The provisions of the ICWA applicable
to involuntary proceedings for foster care placement or termination of
parental rights are triggered when the court "knows or has reason
to know that an Indian child is involved." 25 U.S.C. § 1912(a).
There is no authority directly on point, but we think that State
ex rel. Juvenile Dept.
v. Tucker, 76 Or.App.
673, 710 P.2d 793 (1985), is instructive. There, the mother argued that,
because her Alaskan ancestral village was not notified of certain foster
care placement proceedings, which predated by two years the later termination
proceedings, the foster care placement should be invalidated. At the time
of the earlier proceedings, the trial court judge had inquired as to the
child's eligibility for tribal membership but was provided by the Federal
Bureau of Indian Affairs with information,
later determined to be incorrect, that the child was not eligible for
tribal membership. Id.
at 678-679, 710 P.2d 793. Two years later, when the trial court became
aware of the error, it undertook compliance with ICWA requirements. Id.
at 679, 710 P.2d 793. The reviewing court declined to invalidate the foster
care proceedings because the trial court judge neither knew nor had reason
to know at the earlier date that the child was Indian for the purposes
of the act and its provisions were accordingly not triggered at the time.
at 681, 710 P.2d 793.
record before us similarly supports the conclusion that, at all times
before the 1990 care and protection proceeding until the time in 1995
that the tribe received notice, neither the court nor DSS knew or had
reason to know that the children were Indian. The record contains a child
abuse and neglect report form from April 4, 1990, designating the children
and mother as "Cauc" (which we take to mean Caucasian) and the
father as "Hispanic." In another report prepared as late as
January 7, 1993, the children are again identified as "Cauc."
An attorney for the tribe filed a motion to intervene on December 15,
1995, and was permitted to participate fully in the trial. Even if we
were to assume without deciding that a lack of jurisdiction in earlier
proceedings might in some circumstances fatally affect subsequent proceedings,
the evidence before us is clear that earlier notice was unwarranted. There
was no error.
Error in factual findings.
The father next contends that six of the judge's subsidiary
findings are clearly erroneous because they are not supported by the evidence.
On appeal, we review the evidence to determine if it adequately supports
the judge's subsidiary findings of fact. Commonwealth
v. McGrath, 361 Mass.
431, 438, 280 N.E.2d 681 (1972). It was the trial judge who had the opportunity
to see and hear the witnesses, and it is for him and not for us to assess
their credibility and to weigh the evidence presented. Only if there is
clear error will we disturb those findings. See Mass.R.Civ.P. 52(a), 365
Mass. 816-817 (1974); *751
Adoption of Karla,
46 Mass.App.Ct. 64, 66, 703 N.E.2d 729 (1998) (though the Massachusetts
Rules of Civil Procedure do not apply to petitions to dispense with consent
to adoption, by analogy we look to certain rules as providing cogent standards).
Notwithstanding the heightened burden of proof imposed by the ICWA as
to the ultimate finding concerning whether returning the children to their
father's care would likely cause them to suffer serious physical or emotional
damage, this standard does not apply to each individual piece of evidence
supporting the subsidiary findings. See Commonwealth
v. Truong, 34 Mass.App.Ct.
668, 672, 615 N.E.2d 208 (1993). We have examined the record and conclude
that it fully supports the challenged findings.
We address each of the father's challenged findings in turn. (1) DSS
social worker Murphy testified that there was very little interaction
between the children and the parents during supervised visits, supporting
the finding to that effect. (2) A psychiatrist who evaluated Alex provided
support for the finding that Alex identified the father as his sexual
abuser. (3) A DSS supervisor's testimony provided support for the finding
that the supervisor sent a service plan to the father. (4) The father
misconstrues the finding that the father did not contact DSS after being
contacted. That finding, taken in context, serves to indicate that the
father failed to contact DSS within a certain time frame, a fact fully
supported by the record. (5) A psychiatrist testified that he established
Jake's credibility and the trial judge credited that testimony thereby
providing support for the finding to that effect. (6) Also credited by
the trial judge was the psychiatrist's testimony that Jake could distinguish
truth from falsehoods, providing support for that contested finding.
father argues that the trial judge erred in admitting in evidence, pursuant
to G.L. c. 233, § 82, certain hearsay statements. The graphic
statements in question were made by Alex and Jake and disclosed sexual
abuse by the father. Alex first made disclosures during a SAIN (Sexual
Abuse Intervention Network) interview on February 14, 1992, [FN5]
and then during a psychological evaluation by Dr. Hall, a psychologist,
[FN6] Jake's statements were made on three occasions: first, during an
emergency evaluation conducted by a *752
social worker on April 17, 1993;
[FN7] second, to a DSS investigator on April 27, 1993,
[FN8] and third, to his psychiatrist on April 26, 1993.
On this first occasion, Alex stated, "kiss my peanut," "kiss
my ass," and "he's heavy." Alex responded "no"
when asked if daddy had clothes on. Alex indicated he was touched on his
penis by daddy's hands, and he was kissed on his penis by daddy. Alex
also stated he was made to sit on daddy's penis, which he described as
"bigger." Alex described the penis as "big, strong and,
hard." He stated that he kissed the father's penis and "I ate
it too," "it was pink, tastes like pee, it was gross."
When asked to draw a picture of his biological family Alex said, "No
way Jose." Alex further stated that "I don't know where my f-ing,
freaking mother is"; "I hate them"; "They done it
on purpose"; "It was not my fault"; and "I'll show
you." Dr. Hall testified that Alex grabbed the picture and made a
rubbing movement on the genital area. When asked to identify the perpetrators,
Alex stated, "Daddy and Momma."
Jake initiated conversation of sexual abuse. He stated that he had been
touched on his "dink" (previously identified as his penis).
He indicated that his mother and father had hurt his "dink ."
He stated that his daddy "eats [his] dink," "hurt [his]
dink," and "eats my dink." Jake pointed to the anatomically
correct doll and said that daddy hurt his "dink" with his mouth.
When the investigator began to question Jake about the sexual abuse, he
immediately started to pull at his penis. When she asked whether Jake
knew what a bad touch was he stated, "yes, when mommy bites my dink
hard." When she asked if he knew what a good touch was, Jake stated,
"yes, when mommy and daddy bite my dink softly."
Jake stated to the psychiatrist that the "good monster did something
to [his] dink," and that "the monster bit and ate [his] dink."
Initially Jake denied it was his parents, but at a later interview identified
his father as the perpetrator of the abuse.
Laws c. 233, § 82, "strikes a balance between the parents'
due process right to rebut evidence and the State's need to protect children."
Adoption of Quentin,
424 Mass. 882, 892, 678 N.E.2d 1325 (1997). The
procedures outlined in Commonwealth
v. Colin, 419 Mass.
54, 643 N.E.2d 19 (1994), and approved of in Adoption
of Quentin, supra at
893, 678 N.E.2d 1325, are intended to assure that this balance will be
struck whenever a judge considers whether to admit the hearsay statements
of children pursuant to G.L. c. 233, § 82. These procedures
include: (1) giving prior notice to the party against whom such statements
will be used; (2) showing by more than a mere preponderance of the evidence
a compelling need for use of the hearsay statements; (3) conducting any
necessary separate hearings on the record regarding the reliability of
a child witness's out-of-court statements and issuing specific findings
which present the basis upon which the reliability of the statements was
determined; and (4) requiring independently admitted evidence that corroborates
the out-of-court statement. Ibid.
judge admitted de bene Alex's and Jake's hearsay statements. Before the
close of trial, he issued the required written findings as to the witnesses'
unavailability, the reliability of the statements, and the existence of
corroborating evidence, thereby satisfying the requirements under G.L.
c. 233, § 82, for admission of the statements into evidence.
See Adoption of *753
at 892 n. 6, 678 N.E.2d 1325. The father challenges those findings only
as they concern the reliability of the witnesses and the existence of
corroborating evidence, and we review them for an abuse of discretion.
See Commonwealth v.
Colin, 419 Mass. at
65, 643 N.E.2d 19; Adoption
of Quentin, supra at
892-893, 678 N.E.2d 1325.
The judge found that both of
Alex's interviewers had established the credibility of his statements
by ascertaining whether Alex understood the distinction between truth
telling and lying and that he made the statements in a controlled and
comfortable setting. Alex made the disclosures of sexual abuse spontaneously
in the absence of questioning or prodding by the interviewers and he made
them multiple times. The judge also found that Alex had developed a comfortable
and trusting relationship with one of the interviewers. See Adoption
of Kimberly, 414 Mass.
526, 533 n. 15, 609 N.E.2d 73 (1993). The evidence corroborating Alex's
disclosures included **464
certain observed behaviors (anxiety, aggression, night terrors, masturbation,
and sexualized behavior including grabbing his foster mother's breasts).
The judge found that, during
three interviews, Jake was able to distinguish between truth telling and
lying. The father challenged the reliability of the disclosures made in
Jake's first interview with a social worker who used anatomically correct
dolls, by eliciting testimony from several witnesses that some uses of
anatomically correct dolls may induce children to make false disclosures
of sexual abuse. The judge, however, specifically found that the social
worker "exercised great care and caution with the use of anatomically
correct dolls.... [I]t was only upon Jake's initiative that the anatomically
correct dolls became a part of the evaluation, and [the social worker]
use only to assist Jake with the description of what occurred," a
finding amply supported by the record. Compare Adoption
of Stuart, 39 Mass.App.Ct.
380, 389-390 n. 15, 656 N.E.2d 916 (1995). The corroborative evidence
was once again observed behaviors.
During Jake's sessions with the psychiatrist, he would pull on his penis
repeatedly and would need to urinate once or twice during the hour. In
one session he urinated on the floor. His behavior was very aggressive,
destructive, and self-injurious. He had issues related to food consumption
and mood; he was emotionally unstable, had an unusual interest in sex
and genitalia, and engaged in simulated sex play. The trial judge found
these symptoms to be strong corroborative evidence of the reliability
of Jake's disclosures.
We discern no basis in the record
before us to suggest that *754
the judge abused his discretion in admitting the challenged statements.
Sufficiency of the evidence.
Last, the father contends that the evidence was insufficient
to support termination of his parental rights. As we have stated, under
the ICWA, "[n]o termination of parental rights may be ordered ...
in the absence of a determination, supported by evidence beyond a reasonable
doubt, ... that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage
to the child." 25 U.S.C. § 1912(f). Where, as here, the
children have not been in their parent's custody for several years, the
relevant inquiry is whether their return to that parent is likely to result
in serious emotional or physical damage. See In
re Welfare of W.R.,
379 N.W.2d 544, 546, 548 (Minn.Ct.App.1985). The judge's determination
that the evidence was sufficient to support this conclusion beyond a reasonable
doubt is a question of law subject to review by this court. See Commonwealth
v. Belle Isle, 44 Mass.App.Ct.
226, 229, 694 N.E.2d 5 (1998).
The Federal Bureau of Indian
Affairs (BIA) has promulgated guidelines to assist State courts in interpreting
the ICWA. See 44 Fed.Reg. 67,584-67,595 (1979). These nonbinding but instructive
guidelines indicate that, because many unwarranted removals of Indian
children are attributable to cultural bias on the part of those making
the decisions, the "focus [in terminating parental rights] must be
on whether the particular conditions are likely to cause serious damage."
44 Fed.Reg. 67,593.
the judge concluded that termination was warranted because of evidence
supporting beyond a reasonable doubt that the children would likely suffer
serious physical or emotional damage if returned to their father's care.
He based this conclusion in large part on the evidence before him that
all three children had suffered severe neglect and physical abuse, sexual
at the hands of their father. At the time of trial, Arnold and Jake suffered
from posttraumatic stress disorder attributable to their father's treatment
of them. We perceive no risk that termination based on these factors is
attributable to cultural bias and all that we need consider is whether
the trial judge's conclusion is supported by evidence **465
beyond a reasonable doubt. Proof beyond a reasonable doubt "is a
term often used, probably pretty well understood, but not easily defined....
For it is not sufficient to establish a probability, though a *755
strong one arising from the doctrine of chances, that the fact charged
is more likely to be true than the contrary; but the evidence must establish
the truth of the fact to a reasonable and moral certainty; a certainty
that convinces and directs the understanding, and satisfies the reason
and judgment of those who are bound to act conscientiously upon it."
Commonwealth v. Webster,
59 Mass. 295, 5 Cush. 295, 320 (1850).
The trial judge found that the
children had suffered considerable abuse attributable to their father,
which we have earlier summarized. Further, the father had disclaimed responsibility
for his children's conditions and had declined services that might have
addressed his abusive behavior. Prior efforts to reunify the family were
futile: the children were again subjected to neglect and abuse and were
returned to foster care. The children's psychiatrists opined as to the
likely damage the boys would suffer were they to have any further care
from their father. Absent reliance upon any factor reflecting impermissible
cultural bias and given the plethora of evidence as to the father's affirmative
abuse of his sons and his failure to reform, we discern no error in the
judge's determination that the evidence established beyond a reasonable
doubt that the children's return to their father would likely result in
severe emotional or physical damage.
The ICWA also provides for preference for the placement of Indian children
with Indian families. The representative from the tribe testified at trial
that inquiries were made to find Indian adoptive parents, but to no avail.
The father does not contest the placements for the children.
50 Mass.App.Ct. 743, 741 N.E.2d