Petition of Dept. of Social Services to Dispense With Consent to Adoption

• Decision Date: 13 August 1984
• Parties: PETITION OF the DEPARTMENT OF SOCIAL SERVICES TO DISPENSE WITH CONSENT TO ADOPTION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 861

467 N.E.2d 861

392 Mass. 696

PETITION OF the DEPARTMENT OF SOCIAL SERVICES TO DISPENSE

WITH CONSENT TO ADOPTION.

Supreme Judicial Court of Massachusetts Middlesex.

Argued April 5, 1984.

Decided Aug. 13, 1984.

Patricia A. Lynch, Boston, (Albert DeNapoli, with her), for the mother.

Kim E. Murdock, Asst. Atty. Gen., for Dept. of Social Services.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

In her application for further appellate review following an order of the Appeals Court affirming by summary disposition a decree pursuant to G.L. c. 210, § 3, dispensing with the need for her consent to the adoption of her child, the mother urged, for the first time, that, under arts. 1 and 10 of the Declaration of Rights of the Constitution of the Commonwealth, any finding of her unfitness as a parent must be supported by proof beyond a reasonable doubt. A judge of the Probate and Family Court had found that the mother was unfit, using the standard of clear and convincing evidence required under Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Although the issue is not properly before us, we discuss it and conclude that we should not adopt the standard of proof beyond a reasonable doubt for the purpose of determining parental fitness in cases involving petitions to dispense with consent to adoption. We agree with the Appeals Court that the judge's findings, applying the standard of clear and convincing evidence, were warranted and were not dependent on improper considerations.

1. As a general practice we do not consider issues, particularly constitutional questions, raised for the first time in this court. See New England Merchants Nat'l Bank v. Groswold, 387 Mass. 822, 825 n. 5, 444 N.E.2d 359 (1983); M.H. Gordon & Son v. Alcoholic Beverages Control Comm'n, 386 Mass. 64, 67, 434 N.E.2d 986 (1982). "Although it is within our power to do so, we would not, barring exceptional circumstances, expect to address an issue not already raised in a case at the time we grant further appellate review." Phillips v. Youth Dev. Program, Inc., 390 Mass. 652, 660, 459 N.E.2d 453 (1983). We have shown similar restraint as to constitutional issues in cases that are moot. See Lockhart v. Attorney Gen., 390 Mass. 780, 784, 459 N.E.2d 813 (1984).

The Appeals Court remanded the case to the trial judge to make findings in light of Santosky v. Kramer, supra (see Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 14 Mass.App. 1302 [1982] [summary disposition] ), and thereafter the mother filed a brief in the Appeals Court in which she did not argue that the clear and convincing evidence standard was not the appropriate one, but only that it had not been met. As we have said, only when the mother sought further appellate review did she raise the issue.

Although, for these reasons, the mother does not present a strong case on her own behalf that we should decide the question whether a higher standard than the clear and convincing evidence standard should be applied, we should put the question to rest, as far as we can, because of its importance in numerous pending and future cases of the same kind. In Custody of a Minor (No. 1), 377 Mass. 876, 877, 884, 389 N.E.2d 68 (1979), we discussed a mother's contention that a clear and convincing standard of proof should be adopted, even though in that case, also, the issue was raised on appeal for the first time. In that child custody ("care and protection" under G.L. c. 119, § 24) case, it was our view that we should adopt neither the standard of proof beyond a reasonable doubt nor the standard of proof by "clear and convincing" evidence. Custody of a Minor (No. 1), supra at 885-886, 389 N.E.2d 68. We were fully cognizant of the burden that a custody proceeding places on family integrity and recognized that a determination to deny custody to a parent deserved "added judicial attention." Id. at 885, 389 N.E.2d 68. We imposed the requirement that "the judge enter specific and detailed findings demonstrating that close attention has been given the evidence and that the necessity of removing the child from his or her parents has been persuasively shown." Id. at 886, 389 N.E.2d 68.

In cases involving the termination of parental rights, which is the effect of granting a petition under G.L. c. 210, § 3, to dispense with parental consent to adoption, due process of law under the Constitution of the United States requires that the State prove its case by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). We, of course, must apply this standard of proof to termination proceedings, and the judge undertook to do so in this case. See Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 119, 461 N.E.2d 186 (1984). In the Santosky case, the Supreme Court indicated that the higher reasonable doubt standard need not be used to satisfy Federal due process of law requirements and left the question of any higher standard of proof to the States. Santosky v. Kramer, supra, 455 U.S. at 768-770, 102 S.Ct. at 1402-1403. ¹

We decline to apply the reasonable doubt standard to proceedings involving the question whether to dispense with parental consent to adoption. We have applied that standard to certain civil proceedings in which the individual's interests were pitted directly against the State and the interests of no third person were directly implicated. See Guardianship of Roe, 383 Mass. 415, 451, 421 N.E.2d 40 (1981) (proof of need for involuntary administration of anti-psychotic medication to noninstitutionalized incompetent persons must be made beyond a reasonable doubt); Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 275-277, 372 N.E.2d 242 (1978) (in proceeding involving commitment to mental health facility, the standard of proof, as a matter of State law, is "proof beyond a reasonable doubt"; Andrews, petitioner, 368 Mass. 468, 486-491, 334 N.E.2d 15 (1975) (same as to an order granting a petition that a person be adjudicated a sexually dangerous person and committed as such). ² Cf. Spence v. Gormley, 387 Mass. 258, 273-277, 439 N.E.2d 741 (1982) (preponderance of the evidence standard is constitutionally adequate in proceedings to evict tenants from public housing). A proceeding involving custody or the dispensing with the need for parental consent to adoption involves the welfare of the child. See Custody of a Minor (No. 2), 378 Mass. 712, 721, 393 N.E.2d 379 (1979); Custody of a Minor (No. 1), 377 Mass. 876, 885-886, 389 N.E.2d 68 (1979); Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 265-266, 381 N.E.2d 565 (1978). The Commonwealth intervenes to protect the basic rights of the child, not to protect its own interests or that of society at large. Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 591-592, 421 N.E.2d 28 (1981). In the balancing of interests that affect the choice of a burden of proof, the child's rights to safety, security, and stability are entitled to special respect. See Custody of a Minor, 389 Mass. 755, 768, 452 N.E.2d 483 (1983). After a point, a child's interests are not necessarily the same as his or her parents' interests and the selection of a heavy burden of proof, favorable to the parents' interests, could only be made at the expense of placing "almost the entire risk of error" (Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 [1979] ) on the child. We decline to impose a higher burden of proof than proof by clear and convincing evidence in proceedings requesting that parental consent to adoption be dispensed with.

2. We have reviewed the record and conclude that there was clear and convincing evidence to warrant the judge's conclusion that the mother was then currently unfit to provide for the best interests of the child. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 799- 800, 452 N.E.2d 497 (1983). Much of the mother's argument in effect seeks to relitigate the factual disputes that were resolved by the judge's decision. When we determine that the evidence warrants a judge's conclusion, our function in assessing the evidence is concluded.

The mother also contends that the judge impermissibly relied on certain facts in reaching his conclusion. We consider each of these claims. We have recently said that "it is error to base the allowance of a petition to dispense with parental consent on a finding that the child would be hurt by being returned to the natural parent." Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 119, 461 N.E.2d 186 (1984). The potential effect of the judge's decision on the child is not irrelevant, but any adverse impact on a child from being returned to his or her parent cannot alone support a decision to dispense with consent to adoption. The judge's decision was not based significantly on a finding of the likelihood of an adverse impact on the child if she were to be taken from her foster home. The judge's findings focused principally on the mother's fitness--her capacity to assume parental responsibility.

The judge took note of various expert opinions that the mother suffered from "severe borderline personality organization," and added that the experts and the guardian ad litem concluded that the mother was unfit to care for her child. We have said that "...