Adoption of Hugo

• Decision Date: 14 October 1998
• Parties: ADOPTION OF HUGO. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 516

700 N.E.2d 516

428 Mass. 219

ADOPTION OF HUGO. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 2, 1998.

Decided Oct. 14, 1998.

Susan F. Drogin, Boston, for the father.

Margaret M. Geary, for the mother.

Katherine M. Potter, Boston, for Department of Social Services.

R. Susan Dillard, Committee for Public Counsel Services,Boston (Andrew L. Cohen, Committee for Public Counsel Services, with her), for the child.

Jacqueline Y. Parker, Boston, for National Association of Counsel for Children, amicus curiae, submitted a brief.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

MARSHALL, Justice.

The Department of Social Services (DSS or department) and a minor child, whom we call Hugo, appealed from the rulings and order of a judge in the Boston Division of the Juvenile Court in a care and protection proceeding under G.L. c. 119, §§ 24-29, and G.L. c. 210, § 3. DSS had proposed that Hugo, now four years old, be adopted by his foster mother, with whom he has lived from the age of two. The judge, in what he described as a "heart-wrenching" decision, concluded that Hugo's best interests would be served by an alternative plan proposed by the parents that he be adopted by his paternal aunt, who lives in New Jersey. The Appeals Court reversed, ruling that the parents' "risk-laden" plan could not be supported when DSS had recommended an "advantageous, reasonable, and attainable plan of adoption." Adoption of Hugo, 44 Mass.App.Ct. 863, 868, 694 N.E.2d 377 (1998). We granted the parents' applications for further appellate review. We affirm the judgment of the Juvenile Court.

1. Hugo was born on September 11, 1994. On September 14, 1994, DSS filed a care and protection petition on Hugo's behalf, pursuant to G.L. c. 119, §§ 24-29, received temporary custody of him, and placed him in his first foster home. On August 16, 1995, DSS moved, pursuant to G.L. c. 210, § 3(b ), to amend its pleadings in order to dispense with both parents' need to consent to or receive notice of Hugo's adoption.

A hearing on the merits was held on October 13, 1995; neither parent was present. A judge in the Juvenile Court adjudicated that Hugo was in need of care and protection, committed him to the permanent custody of DSS, and dispensed with the consent of either parent to any adoption of Hugo subsequently sponsored by DSS. The judge also approved DSS's plan for Hugo to be adopted by his first foster mother. Hugo was thirteen months old at the time.

Hugo's biological parents took an appeal from that judgment, but in January, 1997, all parties executed a stipulation providing that the Juvenile Court judgment be vacated, that the matter be heard by another judge, and that separate counsel be appointed for the parents. ² Hugo was by then two years and four months old. In the interim, in August, 1996, DSS moved Hugo to a second foster home. DSS now proposed that Hugo be adopted by his second foster mother, Ms. L.

A second trial before another judge in the Juvenile Court was held between August 22, 1997, and December 1, 1997. ³ On February 25, 1998, the trial judge found Hugo in need of care and protection, found both parents currently unfit to parent Hugo, and granted DSS temporary custody of him. The same day the judge issued a decree dispensing with the consent of and notice to either parent of any petition for Hugo's adoption. Those rulings are not challenged. ⁴

On March 3, 1998, the judge issued his order concerning Hugo's adoption, together with extensive written findings of fact and conclusions of law. He concluded that Hugo's best interests would be served by transferring custody of Hugo to his paternal aunt, Ms. J. He further ruled that the adoption plan propounded by DSS did not serve Hugo's best interests, but that, if Hugo's aunt was unable to accept custody of him, the DSS plan would serve his best interests. The judge gave DSS temporary custody of Hugo, and ordered that DSS work cooperatively to prepare a transition plan for him. He also ordered postadoption visitation between Hugo, his foster mother, and his biological sister.

2. We summarize the pertinent findings of the Juvenile Court judge, reserving for later discussion additional evidence and findings in connection with issues raised.

Hugo was placed in the custody of DSS three days after he was born. He has never lived with either of his biological parents. At the time of his birth, DSS first attempted, unsuccessfully, to place Hugo in Ms. L.'s home with his biological sister, Gloria. Gloria was born in October, 1992, and has lived with Ms. L. since her birth.

In October, 1996, Ms. L. adopted Gloria. When DSS learned several months earlier that Hugo's first foster mother no longer wanted to adopt him, DSS persuaded Ms. L. to accept him as a foster child. Hugo moved permanently to Ms. L.'s home on August 17, 1996. In the interim, in July, 1996, DSS also learned that Hugo's paternal aunt, Ms. J., was interested in adopting him. At that time DSS made no effort to explore that alternative. In the subsequent months, DSS did take some steps to evaluate placement of Hugo with Ms. J., but the record is clear that DSS had determined that Ms. L. was the appropriate adoptive parent for Hugo.

Hugo is a child with special needs who faces physical, mental, and developmental challenges. ⁵ When he was one year old, Hugo was diagnosed with "failure to thrive," and at sixteen months he began receiving services from a child development specialist. At age two years, he began receiving early intervention services, including speech, physical, and occupational therapies, to address his developmental and physical delays. He has behavioral and emotional difficulties, displaying a low tolerance for frustration and difficulty with transitions. The judge found that Hugo needs a "consistent and predictable" environment.

At the time of the second trial, Hugo had lived in Ms. L.'s home for approximately one year. It is undisputed that he has bonded with her and calls her "mommy." Hugo has also bonded with his sister and derives important support from her, despite her young age. The judge found that Ms. L. regularly takes Hugo to the many appointments scheduled for his multiple special needs, but noted that there was no evidence that Ms. L. herself works to improve his speech or address his developmental delays. She does read to him.

Ms. L. derives her income from being a foster parent. While Hugo was living with her, Ms. L.'s two biological daughters, a biological granddaughter, and a foster child moved out of the home, and one foster child moved in. At the time of trial, Gloria, Hugo, and two other foster children were living in Ms. L.'s home. The judge inferred from the testimony that Ms. L. would continue to take foster children into her home, even if she adopted Hugo. ⁶

As to the parents' proposed plan of adoption, the judge found that, in contrast to Ms. L., Hugo's aunt planned to spend "a lot of quality time with him and working in areas where he needs help." Ms. J. is forty-three years old. She was widowed in 1987, and now lives in New Jersey with her fiance, her fifteen year old son, and her thirteen year old cousin, whom Ms. J. has raised as a daughter from infancy. She has been employed for many years by the New York police department, since 1980 as a police administrator's aide. Her fiance is an electrician, a union member who has worked for the same company for over twenty years. Ms. J. has raised her own son. Since his birth he has had special needs and developmental disabilities, including a heart murmur, low birth weight, poor motor skills, speech delays, and visual difficulties that have required surgery. He has no behavioral problems. Although her son's school achievement is below average, his development has progressed over time.

The judge found that Ms. J. has been "heavily, consistently, and directly" involved in the treatment of her son. She has worked with him at home to reinforce the goals of his teachers and special needs providers. Ms. J. testified that she intends to do the same with Hugo. She has conferred with psychologists and service providers in New Jersey to determine the most appropriate educational placement for Hugo; the school psychologist, with whom she has a long-term relationship, is available to provide additional assistance with Hugo, if needed. Ms. J. is close to her own mother and her siblings and maintains a close relationship with her mother-in-law, a certified social worker and elementary school teacher. The judge found, based on her testimony and demeanor, that Ms. J. had the "track record, talent, capability and desire" to address Hugo's special needs, improve his development, and be a strong advocate for him.

The judge credited the expert testimony of two witnesses testifying on behalf of DSS and Hugo that Hugo is a fragile child for whom transitions are difficult; that he recovered from the disruption of the move from his first foster home; and that, were he to move to New Jersey, he would lose a stable and structured environment that is important to him. He also credited the testimony of the DSS expert that a child may be helped to compensate for, and adjust to, loss. He credited the testimony of Barbara Beardslee, an expert for the parents, that Hugo is attached to Ms. L. and to Gloria, that these attachments are predictive of his ability to form future attachments, and that where such an attachment is disrupted, a child typically will go through a period of adjustment and might display behavioral disturbances, but that steps could be taken to assist a child through this process. He also credited her testimony that, as Hugo advances to the age of formal schooling, it will be important to minimize his developmental deficits so that he can interact with peers and teachers to optimize his continuing growth and development.

The judge concluded that, while Ms. L. is a caring...