Adoption of Georgia

• Decision Date: 07 November 2000
• Citation: 739 NE 2d 694,433 Mass. 62
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ADOPTION OF GEORGIA & another.

433 Mass. 62

739 NE 2d 694

ADOPTION OF GEORGIA & another.¹

Supreme Judicial Court of Massachusetts, Franklin-Hampshire.

November 7, 2000.

December 14, 2000.

Present (Sitting at Brockton): MARSHALL, C.J., ABRAMS, GREANEY, IRELAND, SPINA, COWIN, & SOSMAN, JJ.

Patricia Quintilian for the mother. Katherine M. Potter (Richard A. Salcedo with her) for Department of Social Services.

Mary A. Samberg for the children.

Jinanne S.J. Elder & Janet McGowan, for National Court Appointed Special Advocate Association & another, amici curiae, submitted a brief.

GREANEY, J.

Mary (a pseudonym), the mother of Georgia and Jane, appeals from a decision of the Franklin-Hampshire Division of the Juvenile Court Department entered in a combined proceeding that adjudicated Georgia and Jane in need of care and protection and dispensed with the need for Mary's consent to their adoption.² Represented by new counsel on appeal, Mary (1) argues that the judge prejudged the case before all the evidence was submitted, so that a new trial is required; (2) makes a series of arguments that the judge's decision fails to credit her with personal qualities reflecting her fitness as a mother, and is not supported by clear and convincing evidence; (3) claims that the Department of Social Services (department) failed in its duty to strengthen and encourage the family unit; and (4) asserts that the judge improperly admitted in evidence the testimony and report of a court appointed special advocate (CASA) in the absence of authority to do so. We transferred the case to this court on our motion primarily to consider the argument concerning the CASA report. We reject Mary's arguments and direct the entry of an appropriate decree.³

1. At the conclusion of the first day of trial,⁴ the judge engaged in a colloquy with counsel concerning the scope of the contested issues in the case. Trial counsel for Mary indicated that her client "wants custody" of the children and that she intended to put on a case on the merits. The following exchange then took place between the judge and Mary's trial counsel:

THE JUDGE: "Well, at this point, the evidence is so compelling. For two years — two and a half years, this woman has not been able to handle the children more than three days in a row. I mean just because she recognizes it — that's a wonderful thing that she recognizes it, but that doesn't make her able to do that — 24 hours a day, 7 days parenting.

"I mean the recognition that she's stressed out and that she was able to at least understand that and bring the children back doesn't make her able to do the parenting that she, even in her own words, says is required — 24 hours a day, 7 days a week.

"And if you're going to say that her testimony is going to be that she's stabilized on antipsychotic medication and that's why she can parent — is that the evidence that you're going to present?"

MARY'S TRIAL COUNSEL: "It's actually antidepressant medication."

THE JUDGE: "There's a pattern of being on and off it for years that we have here. Certainly, she has every right to go through this hearing. I want to be clear about what we're going through the hearing for. This juncture, I mean, I think the evidence is compelling. You know the standard.

"It may change. I know we only have probably a fifth of the evidence in. And I just don't want people to have to sit here and go through this. It's painful for everyone. If that's the issue. And if it's not the issue, fine.

"Certainly, I would lean to the department for an open adoption if that were the only issue. That, I guess, is what I would like you to know. Okay?"

MARY'S TRIAL COUNSEL: "We understand that. And it has not changed that we've been — that we've known open adoption is available. And they know what her position is as well. And that, of course, could change at any time."

THE JUDGE: "All right."

Based on the above, Mary argues that she was denied a full and fair trial because the judge had concluded, before hearing all the relevant evidence, that Mary was an unfit mother. We disagree.

Mary correctly points out that, "[i]f a judge reaches a decision on an issue of fact before the testimony on that issue is completed and thus closes [her] mind to a fair consideration of competent evidence not yet heard, [she] has deprived the party of his right to a full and fair hearing upon the whole evidence." Preston v. Peck, 271 Mass. 159, 164 (1930). This principle, however, does not apply here because the judge's comments, read in context, show that she was attempting to determine the precise issues in dispute so the trial could proceed without unnecessary delay. While the judge should have refrained from making comments about the strength of the evidence she had just heard, the judge acknowledged that the evidence "may change" and that much more evidence would be presented. The judge thus indicated that she had an open mind on the whole case and had not conclusively decided the issue of Mary's parental fitness. Contrast id. (judge's "statement to the effect that he had made up his mind and was going to believe [a certain witness] ... and no expert could change [the judge's] opinion" made the introduction of further testimony "a useless ceremony"). We take note of the fact that the respondent's trial counsel made no objection to the remarks and filed no motion for a mistrial. The facts disclosed by the record show that the judge sought to expedite the trial but not that she had prejudged the main issue.⁵

2. Mary's next series of arguments center on the adequacy of the judge's decision that Mary claims overlooked relevant considerations and is not supported by clear and convincing evidence.

The standards governing the judge's decision are as follows. To determine whether to dispense with parental consent to adoption, the judge must evaluate whether the parent can assume the duties and responsibilities required of a parent and whether dispensing with consent will be in the best interests of the child. See G. L. c. 210, § 3; Adoption of Mary, 414 Mass. 705, 710 (1993). Before a judge may remove custody from a parent and award it to the department, the judge must find, by clear and convincing evidence, that the natural parent is unfit to further the welfare and best interests of the child. See Care & Protection of Stephen, 401 Mass. 144, 150 (1987); Custody of Two Minors, 396 Mass. 610, 619 (1986). Subsidiary findings must be proved by a fair preponderance of the evidence. Adoption of Quentin, 424 Mass. 882, 886 (1997). We do not disturb these findings absent a showing that they are clearly erroneous. Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 670 (1986). Even so, we require that the judge's findings be specific and detailed, so as to demonstrate that close attention was given to the evidence. Adoption of Hugo, 428 Mass. 219, 224 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999); Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979).

The department met its burden of proving Mary's unfitness by clear and convincing evidence. The judge made ninety-seven findings of fact, each of which is supported by the evidence. The findings establish that Mary's long-term history of substance abuse and mental illness (the latter of which continued through trial), combined with patterns of ongoing, repeated, and serious parental neglect, abuse, and misconduct, made her an unfit parent. We reject Mary's argument, for lack of support in the record, that the judge did not adequately consider Mary's efforts to comply with the department's service plans. The judge was warranted in finding and concluding that, while Mary had made progress in some areas, she "had made no progress in ways that would assist her in getting her children back." Similarly, in reaching her decision, the judge did not overlook Mary's personal qualities. The judge was warranted in finding that the qualities stressed by Mary were refuted by the evidence. The judge properly took into account that, notwithstanding Mary's many difficulties, she had a close relationship with her children that justified an order giving Mary rights of postadoption visitation.

3. Mary's argument that the department failed to fulfil its duty to strengthen and encourage the family unit lacks merit. The record indicates that the department worked diligently, but without success, to attempt to address Mary's difficulties so that the family could be reunited. See Adoption of Abigail, 23 Mass. App. Ct. 191, 197 (1986). It is apparent from the judge's decision that the additional services Mary claims she should have received from the department (day care and substitute transportation) would not have solved her chronic problems.

4. Fourteen witnesses testified at the trial. The witnesses included a clinical psychologist, Mary's psychiatrist, a court appointed investigator, and a CASA (court appointed special advocate). The reports of the investigator and the CASA were admitted in evidence. Mary argues that the testimony and the report of the CASA should not have been considered because there is no authority allowing such evidence and its admission placed inadmissible hearsay and opinion testimony before the judge. We disagree.

In 1974, Congress passed the Child Abuse Prevention and Treatment Act, which recognized a child's need for independent representation in civil child protection proceedings and required that "in every case involving an abused or neglected child which results in a judicial proceeding a guardian ad litem shall be appointed to represent the child in such proceedings." Pub. L. No. 93-247, § 4(b)(2)(G), 88 Stat. 4 (1974). See 42 U.S.C. §§ 5101-5107 (1994). Thereafter, the...