Adoption of Helen, In re

• Decision Date: 29 June 1999
• Citation: 712 N.E.2d 77,429 Mass. 856
• Parties: ADOPTION OF HELEN (and a consolidated case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 77

712 N.E.2d 77

429 Mass. 856

ADOPTION OF HELEN

(and a consolidated case ¹).

Supreme Judicial Court of Massachusetts, Essex and Suffolk.

Argued April 5, 1999.

Decided June 29, 1999.

Andrew Cohen, Boston, Committee for Public Counsel Services (Claudia Bolgen, Woburn, with him) for the mother.

Virginia A. Peel, Boston, for Department of Social Services.

Lisa J. Campbell, West Palm Beach, FL, for the child.

Present: WILKINS, C.J., ABRAMS, LYNCH, FRIED, MARSHALL, & IRELAND, JJ.

ABRAMS, J.

The mother appeals from a judgment of the Juvenile Court dispensing with her consent to adoption of her child, from the denial of a posttrial motion for a new trial, and from the denial of a petition for a review and redetermination hearing. ² The mother also appeals from the denial of relief pursuant to G.L. c. 211, § 3, by a single justice of this court concerning the denial of a renewed motion for visitation. ³ We granted direct appellate review on the appeal from the trial court. We consolidated the two appeals. We affirm both the decision of the trial judge and the ruling of the single justice denying visitation.

The child was born in June, 1992, and lived with the mother. In October, 1995, the Department of Social Services (department) filed a report pursuant to G.L. c. 119, § 51A, alleging that the mother and child were staying in a house twice raided due to drug activity. The mother admitted to having a serious substance abuse problem and stated that she was to enter an abuse counselling center. The judge granted the department temporary custody. The child was returned to her mother two weeks later on condition that the mother remain at the substance abuse center. The two remained at the program until February, 1996. At that point, the mother ceased to communicate with the department and her whereabouts were unknown to the department. In August, 1996, the department located the mother and child. The department removed the child from the mother's custody and placed the child in foster care, where the child now resides. The mother failed to communicate with the department from August, 1996, until February 28, 1997.

In September, 1996, a Juvenile Court judge held a seventy-two hour hearing regarding the August custody transfer. Though served by summons, the mother failed to attend the hearing. The department filed a petition for permanent custody and, on February 20, 1997, the Juvenile Court judge held a hearing on the merits. The mother did not attend the hearing. The child was adjudicated in need of care and protection and committed to the permanent custody of the department pursuant to G.L. c. 119, § 26. ⁴

In February, 1997, the mother reestablished communication with the department. From March, 1997, until August, 1997, she submitted negative urine screens, attended Alcoholics Anonymous-Narcotics Anonymous meetings, and completed parenting classes. The mother also had three visits with the child.

After a September 2, 1997, visit with her child, the mother failed to communicate with the department. The mother did not reestablish communication with the department until May, 1998.

During the period when the mother did not communicate with the department, a trial was held on whether to dispense with the need for parental consent to adoption. The department presented the testimony of two witnesses and submitted sixteen exhibits in evidence. The mother did not attend.

In May, 1998, the mother filed a motion for visitation and a motion to reopen the evidence. After hearing, both motions were denied. In June, 1998, the mother filed a motion for reconsideration of the denial of her motion for visitation and a motion to reopen the evidence. ⁵

In June, 1998, the judge entered an order dispensing with the need for the mother's consent to the child's adoption. The mother filed a notice of appeal and filed a motion to stay the order. The judge denied the stay. The mother appealed and a single justice of the Appeals Court granted a stay. In July, 1998, the judge issued findings of fact and conclusions of law relating to the consent order.

In August, 1998, the mother filed a renewed motion for visitation. After hearing, the motion was denied. The mother filed a petition pursuant to G.L. c. 211, § 3, before a single justice of this court seeking relief. Relief was denied. In September, 1998, the mother filed a petition for a review and redetermination hearing, pursuant to G.L. c. 119, § 26. After hearing, the motion was denied.

We turn now to the merits of the appeal.

1. Termination proceeding. The mother challenges the decree dispensing with her consent to adoption pursuant to G.L. c. 210, § 3. She argues that the judge's findings are not supported by the evidence presented at the termination proceeding and do not provide clear and convincing evidence of parental unfitness. We disagree.

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, 610 N.E.2d 898 (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, 514 N.E.2d 1087 (1987); Custody of Two Minors, 396 Mass. 610, 619, 487 N.E.2d 1358 (1986). Subsidiary findings must be proved by a fair preponderance of the evidence. Adoption of Quentin, 424 Mass. 882, 886, 678 N.E.2d 1325 (1997). We will 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, 493 N.E.2d 197 (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, 700 N.E.2d 516 (1998); Custody of a Minor (No. 1), 377 Mass. 876, 886, 389 N.E.2d 68 (1979).

We conclude that the department met its burden of proving parental unfitness by clear and convincing evidence. Although some of the judge's subsidiary findings were erroneous, the judge amply supported his conclusion that the mother is currently unfit to care for her child. The judge made fifty-nine findings that demonstrate a history of substance abuse, a pattern of late and missed appointments, failure to communicate her whereabouts to the department, and a minimal amount of communication with the child over a significant period of time. ⁶ Nearly every finding was supported by the record which included the testimony of the department's social worker. The judge cited to the evidence in making nearly every finding. Specifically, he found that, after the mother's unsuccessful attempts to address her substance abuse problem and a 1994 incident of abandonment, the department was awarded custody of the child in 1997. The department did not know where the mother was, and the mother failed to appear at the temporary custody hearing or at the care and protection trial. When the mother did resurface a short time later, she repeatedly missed appointments with the department. The mother also failed to keep appointments to visit with her child, including a visit scheduled in June, 1997, for the child's fifth birthday. In September, 1997, the mother disappeared. She did not communicate with the department for eight months. From these facts, the judge could conclude the mother is unfit to parent her child.

The mother takes issue with minute aspects of the judge's findings. For example, she points out that the dates of missed appointments and visits are unsupported. She also quibbles with how long after a missed appointment the mother called the department, or exactly how late she was for visits.

We agree with the department that, although the judge's findings on these points may have been erroneous, the judge's over-all conclusion of parental unfitness is fully supported by the record. The judge may have been mistaken regarding the dates of appointments, but the record shows a pervasive pattern of missed appointments and visits. The judge may have erred in describing how late the mother was for visits, but the mother does not disagree that she was late for visits and that weeks passed before she offered any explanation for her absence. ⁷ We agree with the judge that the evidence of the mother's unfitness was clear and convincing.

2. Review and redetermination. After the judge dispensed with the mother's consent to adoption pursuant to G.L. c. 210, § 3, the mother filed a petition for review and redetermination pursuant to G.L. c. 119, § 26. That petition was denied. ⁸

General Laws c. 119, § 26, governs review and redetermination hearings. That statute provides in part that "the department, parents, person having legal custody of, counsel for a child, the probation officer, guardian or guardian ad litem may petition the court not more than once every six months for a review and redetermination of the current needs of such child whose case has come before the court." This provision is "primarily, the means by which a parent or other interested party, including the department, may bring to a judge's attention a change in the situation of a child, or of a child's parent, which might warrant reconsideration or modification of the original order adjudicating the child in need of care and protection." Care & Protection of Isaac, 419 Mass. 602, 611-612, 646 N.E.2d 1034 (1995). The statute explicitly states that "any person against whom a decree to dispense with consent to adoption has been entered ... shall not have such right of petition for review and redetermination." Further, the statute allows for review and redetermination of...