Adoption of George, In re

• Decision Date: 08 May 1989
• Docket Number: No. 88-P-772,88-P-772
• Citation: 537 N.E.2d 1251,27 Mass.App.Ct. 265
• Parties: In re ADOPTION OF GEORGE et al. 1
• Court: Appeals Court of Massachusetts

Page 1251

537 N.E.2d 1251

27 Mass.App.Ct. 265

In re ADOPTION OF GEORGE et al. ¹

No. 88-P-772.

Appeals Court of Massachusetts,

Middlesex.

Argued January 13, 1989.

Decided May 8, 1989.

Sharon Feigenbaum, Cambridge, for mother.

Countess C. Williams, Asst. Atty. Gen., for Dept. of Social Services.

Before ARMSTRONG, KASS and WARNER, JJ.

KASS, Justice.

Within the 1,583 pages in the record (1,229 of testimony and 354 in the record-appendix), there was tragically ample clear and convincing evidence to warrant the ultimate finding of the Probate Court judge that the mother was an unfit parent for George, Sidney, and Thomas. Having so found, the judge allowed the petition of the Department of Social Services under G.L. c. 210, § 3, that the mother's ² consent to the adoption of those three of her children be dispensed with. See Santosky v. Kramer, 455 U.S. 745, 747-748, 102 S.Ct. 1388, 1391-1392, 71 L.Ed.2d 599 (1982); Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 113-114, 461 N.E.2d 186 (1984); Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass.App.Ct. 120, 124-125, 463 N.E.2d 1187 (1984). The mother has appealed.

We have the benefit of extensive findings of fact by the Probate Court judge, with references to supporting portions of the record. In far from inclusive summary, we set out those facts.

When she herself was twelve years old, the mother (whom we shall call Louise) had begun to behave in a self-destructive fashion. By the age of fifteen she left school. Soon thereafter, Louise ran away from home, lived on the streets and took to stealing cars. Eventually located by police, Louise was committed to McLean Hospital for psychiatric treatment. McLean, after some time, declared her too difficult to handle and asked her to leave. That was in December, 1975.

While sixteen, Louise became pregnant. She had just turned seventeen when Jill, who is not involved in this case, was born, alas, with multiple defects. Three months after Jill's birth, Louise took up with a man we shall call Phil. By him she gave birth to George in 1978 and Sidney in 1979. During this period Louise lived variously with Phil's family, her mother, and Phil's family again. Eventually she and Phil set up a household themselves. Phil regularly beat the children and Louise. Such was the level of violence, daily strife and conflict that the Department of Social Services (DSS) in 1979 took the children into care and protection and placed them in foster homes. A fourth child, Thomas, was born in 1984, father unknown. A fifth child, John, was born in 1985.

George, the second child, developed a volatile and violent character. Perhaps the most dramatic manifestation of his unlovely behavior patterns occurred of an afternoon when he pushed his little brother and a puppy out a third-story window. After shuttling back and forth between his mother's shifting homes (during the first four years of George's life, Louise moved at least nine times) and foster care placements, George was placed with a foster mother with whom he has lived since December, 1983. By reason of the application of intense and caring attention, the foster mother, with professional guidance, has enjoyed some success in modifying George's behavior.

Sidney, the third child, also was prone to physical and verbal violence. It amused him to torment younger children and to fantasize about harming his older brother and parents. His behavior so taxed the capacity of a foster home in which he had been placed in 1983, that he was removed to the New England Home for Little Wanderers. Louise proved unable to maintain visits with Sidney which had been provided for under a service plan promulgated by DSS. When she did turn up for visits, interaction with Sidney was unsatisfactory and, indeed, the child often lapsed into regressive behavior after visits with his mother. An experienced guardian ad litem for George and Sidney reported, "Sidney is the most frightening six year old child I have ever met. He is a time bomb ticking away at the New England Home."

Thomas, the fourth child, was placed in the custody of DSS at age two months. DSS returned him to Louise shortly after the fifth child was born and when Thomas' age was one year and three months. Things did not go well. Thomas displayed signs of violence visited upon him. Among other things, Louise tried to force food into Thomas if he did not eat. She found it difficult to control her temper when dealing with the child and in one instance of impatience literally threw him into a play pen. Following a period of foster care and prior to his last removal from Louise's custody, Thomas regressed in speech and motor development. He lost weight. His development in his foster home placement has been normal, and Thomas regards his foster parents as his only parents.

1. Sufficiency of the evidence of current unfitness. As appears from the facts summarized, the judge made findings which added up to a twelve year pattern of neglect, disorganization, and destructive handling by the mother of the three children with whom we are concerned. Unless clearly erroneous, the judge's findings stand. Petition of Dept. of Social Services to Dispense with Consent to Adoption, 397 Mass. 659, 671, 493 N.E.2d 197 (1986). Adoption of Adam, 23 Mass.App.Ct. 922, 924, 500 N.E.2d 816 (1986).

The mother protests that the evidence of her unfitness is stale and that her life has stabilized. She cares adequately for her eldest, Jill, and her youngest, John. To be sure, stale information cannot be the basis for a finding of current parental unfitness. Petitions of Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass.App.Ct. at 126, 463 N.E.2d 1187. Prior history, however, has prognostic value. Petition of Catholic Charitable Bureau to Dispense with Consent to Adoption, 395 Mass. 180, 185, 479 N.E.2d 148 (1985). Adoption of Diane, 400 Mass. 196, 204, 508 N.E.2d 837 (1987). Adoption of Abigail, 23 Mass.App.Ct. 191, 196, 499 N.E.2d 1234 (1986). Her history shows failures to follow through with therapy and other forms of assistance for her children and for herself. See Petition of Catholic Charitable Bureau to Dispense with Consent to Adoption, 395 Mass. at 185, 479 N.E.2d 148. Louise consistently projects her inability to cope with her concededly difficult circumstances on external forces: inadequate help from DSS, incapacity caused by a thyroid condition, short temper caused by birth control pills. Her plans for how she would deal with two hyperactive boys and their abused, neglected younger brother were unattached to any reality. The judge properly measured the acute needs of George, Sidney, and Thomas against Louise's limited capacity and heretofore chaotic life.

At the time of trial, Louise lived with her eldest and youngest. If she could care for them, she asks, how could she be an unfit parent? It may be answered in part that her ability to be a parent for Jill and John is a relative matter. The record is replete with evidence of neglect of them. The cases recognize that a parent may be fit to raise one child and not another. Petition of Catholic Charitable Bureau to Dispense with Consent to Adoption, 395 Mass. at 185 n. 6, 479 N.E.2d 148. Petitions of the Dept. of Social Services to Dispense with Consent to Adoption, 18 Mass.App.Ct. at 125, 463 N.E.2d 1187. Much depends on the needs of the child. George and Sidney require intense and trained attention to a degree which could not be expected of Louise, who has two children at home, one of them very young. She lacks adult support; the father of the fifth child had moved out. Thomas falls apart when in his mother's custody. Given the needs of George, Sidney, and Thomas and the limited personal resources of Louise, it is apparent that the addition of George, Sidney, and Thomas to her responsibility is a recipe for disaster.

Louise also protests that DSS was insufficiently diligent to reunite the family and, indeed, plotted its separation. The record does not bear this out. DSS made repeated efforts to formulate supportive service plans. Louise was not able to cooperate. See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 802, 452 N.E.2d 497 (1983); Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289, 503 N.E.2d 1275 (1987).

2. Admissibility of case work documents. Among forty-seven documents received in evidence, there were twelve service plans prepared by DSS, eleven case reviews by DSS, three foster care reviews by DSS, three adoption plans submitted to the Probate Court by DSS, and a miscellany of family assessments, psychological evaluations, reports of court investigators, guardians ad litem, a home study, health clinic records, assessments and planning conference notes from the New England Home for Little Wanderers, a child abuse and neglect report, and letters from social workers. Six case reviews and two service plans were admitted without objection for the limited purpose of showing that a case review had occurred or that a service plan had been formulated. Thereafter, eleven service plans, three case reviews, three foster care reviews, and minutes of an assessment conference and five planning conferences at the New England Home for Little Wanderers were admitted in evidence without limitation over the objection of the biological parents.

The justification for admitting the documents objected to was that they fell within the statutory business records exception set forth in G.L. c. 233, § 78. There is no dispute that the various plans and case reviews were written in the regular course of business and that it was the regular course of business to make such memoranda. See G.L. c. 233, § 78; Wingate v. Emery Freight Corp., 385 Mass. 402, 406-407, and Liacos, J., concurring, at 408-410, 432 N.E.2d 474 (1982); Liacos,...