In re Adoption of Rhona

Decision Date28 February 2003
Docket NumberNo. 01-P-1472.,01-P-1472.
Citation784 N.E.2d 22,57 Mass. App. Ct. 479
PartiesADOPTION OF RHONA.<SMALL><SUP>1</SUP></SMALL>
CourtAppeals Court of Massachusetts

Shelli C. Hamer, Whitinsville, for the mother.

Henry C. Porter, Beverly, for the father.

Sheila L. York, Assistant Attorney General, for Department of Social Services.

Lisa M. Sheehan, Plympton, for the child, was present but did not argue.

Present: DUFFLY, KASS, & TRAINOR, JJ.

TRAINOR, J.

This is an appeal by both the mother and the father from a Boston Juvenile Court judge's grant of a petition of the Department of Social Services (department) to adjudicate their child to be in need of care and protection, pursuant to G.L. c. 119, § 26, and to dispense with their consent to the adoption of their child, pursuant to G.L. c. 210, § 3. The decree issued on June 29, 2000, and findings were entered on September 27, 2000, two years after trial ended on August 13, 1998.

The mother argues that (1) the judge's ultimate finding that she is currently unfit to act as a parent of the child is not supported by clear and convincing evidence; (2) the judge's determination of best interests of the child pursuant to G.L. c. 210, § 3(c), was based on findings that were clearly erroneous; and (3) the termination of visitation, delay in the conduct of the trial, and failure to issue the decision and findings in a timely manner were unduly prejudicial and violated the mother's right to due process.

The father argues that the judge committed error in three respects: by improper judicial intervention demonstrating bias; by allowing the department to amend its petition so that the department could proceed to dispense with consent to adoption; and by finding that the department had made reasonable efforts to preserve the family pursuant to G.L. c. 119, § 1.

1. Procedural history. On October 26, 1994, the department filed a care and protection petition under G.L. c. 119, § 26, in the Boston Juvenile Court concerning Rhona, then one month old, and her sister Gail,2 then twelve years old. Temporary custody of Rhona and Gail was given to the department and both were placed in foster care.3 The department's motion to amend the pleadings to include dispensing with the parents' consent to adoption of Rhona was allowed on March 26, 1997. The case was heard on the merits on May 7, May 16, June 25-26, August 13-15, September 24, and December 19, 1997; February 4, February 11, February 27, April 9, and August 13, 1998.

In November, 1998, after an October visit, the department suspended visits of both parents with Rhona. The father filed a motion for visitation on December 7, 1998. Three days later, on December 10, 1998, the department filed a motion to suspend visitation. Testimony on the termination of visitation motion was heard on June 3, July 1, August 27, and August 30, 1999. The judge did not rule on the issue at that time, but stated that he would address visitation when he addressed the merits of the case. A date of December 10, 1999, was set for the issuance in court of the decision and findings, but was continued several times until June 29, 2000. That day, the judge found Rhona in need of care and protection, awarded custody of her to the department, dispensed with consent to her adoption with respect to both parents, approved the department's adoption plan, and ordered that visits be suspended. The mother's motion for a stay of the decree pending appeal was denied on September 7, 2000. The judge's findings were filed on September 27, 2000. The mother and father appealed.

2. Facts. The mother's first daughter, Gail, was born on August 24, 1982, when the mother was fifteen years old. The mother completed high school, attended business education classes, and completed a cosmetology program. She was employed by the Harvard Community Health Plan from 1985 to 1992, when she was laid off. Rhona, the subject of this case, was born on September 21, 1994. The mother's third daughter Nancy,4 was born on January 21, 1996. At the time the judge entered his decree and findings, the mother was living with Gail and Nancy.

Rhona's biological father, who is named in the petition, had no contact or relationship with Rhona until 1996, when Rhona was two years old. At the time the Juvenile Court judge entered his findings, the father was living part time with a son and daughter from other relationships, who are not subjects of this case.

3. Evidence of current unfitness. The mother argues that findings made by the judge determining her to be currently unfit are stale and not supported by the evidence. A child may be removed permanently from the custody of her parents and parental consent to adoption may be dispensed with only if there is clear and convincing evidence that the parent is currently unfit to care for the child. Custody of a Minor, 389 Mass. 755, 766, 452 N.E.2d 483 (1983). Adoption of Mary, 414 Mass. 705, 710, 610 N.E.2d 898 (1993). "[T]he judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference.'" Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 670, 493 N.E.2d 197 (1986), quoting from Custody of Two Minors, 396 Mass. 610, 618, 487 N.E.2d 1358 (1986). A "judge's findings must be left undisturbed absent a showing that they clearly are erroneous." Care & Protection of Martha, 407 Mass. 319, 327, 553 N.E.2d 902 (1990). Adoption of Kimberly, 414 Mass. 526, 529, 609 N.E.2d 73 (1993). "A finding is clearly erroneous when there is no evidence to support it, or when, `although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160, 360 N.E.2d 1051 (1977).

In this case, the judge based his ultimate finding of unfitness primarily on the subsidiary finding that "[the mother's] drug use has consistently and repeatedly resulted in harm to [Rhona]. Any future relapse would place [Rhona] at risk for further harm." This finding is the cornerstone of the determination of the mother's unfitness, and even if that finding or other subsidiary findings are not clearly erroneous, the findings do not prove parental unfitness by clear and convincing evidence. See Care & Protection of Elaine, 54 Mass.App.Ct. 266, 272, 764 N.E.2d 917 (2002).

In any event, that finding is problematic in several respects. First, the most recent incident of the mother's drug use (September of 1996) was almost four years old at the time the findings were made and the decree entered. The judge's findings focus on the mother's drug use during her pregnancy with Rhona in 1994 and the fact that Rhona tested positive for cocaine at birth and experienced withdrawal for six months. The findings further focus on the mother's two relapses, including the September 1996, relapse that precipitated her entry into the Taking Care of Business (TCB) program. Significantly, and contrary to the judge's determination, all the evidence subsequent to the mother's relapse in September, 1996, was of a positive nature. It spoke to the mother's success in the TCB program and her continued sobriety and success in aftercare. As discussed more fully below, although it was appropriate for the judge to consider the mother's relapses in determining her fitness, it was improper for him to simultaneously ignore the more recent evidence of her sobriety.

Second, there is very little evidentiary basis5 compelling the connection the findings have drawn between the mother's drug use and harm to Rhona. "Parental unfitness, as developed in the case law, means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's foster parent [footnotes omitted]. Rather, the idea of `parental unfitness' means `grievous shortcomings or handicaps' that put the child's welfare `much at hazard.'" Adoption of Katharine, 42 Mass.App.Ct. 25, 28, 674 N.E.2d 256 (1997), quoting from Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646, 328 N.E.2d 854 (1975). Drug use, without more, falls in this category of being insufficient to support a determination of unfitness. Adoption of Katharine, supra at 33-34, 674 N.E.2d 256.

In this case, the judge reached an untenable conclusion that the mother's history of drug use rendered her unfit. In particular, the judge wrongly attributed two incidents in which Rhona was injured to the mother's relapse into drug use. Those incidents show no link between the mother's drug use and harm to Rhona. The first incident occurred when Rhona's father and his family took her to a shopping mall without the mother and without the department's permission. Rhona fell at the mall and received a cut to her head, requiring stitches. No report under G.L. c. 119, § 51A, was filed as a result of that incident, as it was determined to be an accident. There was no evidence, or even a suggestion, that drug use by the mother had anything to do with the injury, which occurred out of her presence. The second incident occurred in August, 1996. Rhona received cigarette burns at a restaurant while in the mother's custody. A § 51A report was filed by the hospital because the burns appeared to be inflicted rather than accidental. The department investigated that § 51A report and determined that the report of abuse was unsupported. The investigator determined that the mother's explanation that the burns happened accidentally at a restaurant was plausible.6 The hospital was unaware of the mother's explanation at the time of filing the § 51A report. Rhona's pediatrician testified at trial that he believed the burns to be inflicted,7 but conceded on...

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